HEARING OF THE SENATE JUDICIARY COMMITTEE

NOMINATION OF ELENA KAGAN TO BE AN ASSOCIATE JUSTICE OF THE U.S. SUPREME COURT

SENATOR PATRICK LEAHY (D-VT)

SOLICITOR GENERAL ELENA KAGAN, THE NOMINEE

216 HART SENATE OFFICE BUILDING, WASHINGTON, D.C.

TIME: 9:03 A.M. EDT

DATE: TUESDAY, JUNE 29, 2010

Good morning, everyone.

Today -- today Justice John Paul Stevens' resignation from the Supreme Court takes effect. And I appreciated your recognition of his service to the country in your opening statement, Solicitor General Kagan. He was the first person -- 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 your respect for all three branches of our democratic government. And I appreciate your pledge to consider every case impartially, modestly, with commitment to principle and in accordance with law....

So this morning, we'll begin our questioning. I -- Senator Sessions and I talked about this. Each senator, Republicans or Democrats, will have a 30-minute round. And we will go -- alternate back and forth. So I will begin the first round -- Solicitor General Kagan -- you can start the clock....

Solicitor General Kagan, you spoke yesterday about your parents, children of immigrants, first in their families to attend college. I was struck when you said that your mother didn't learn English until she was ready to go to school. And I can relate with that. That's the same as my mother and my wife....

Before we get to questions about the important role that the Supreme Court plays in American lives, do you want to share with us some additional thoughts, about the values your parents taught you that put you on the path to 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 serving the communities that you live in, of serving other people....

And I guess I got a little bit from each side. My father, 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....

And then one of the things that he did quite a lot of was, he helped tenants in New York City. The neighborhood we lived 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 really part of his legal 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 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 help other people and to serve the nation....

So that's what I most took away from my father. My mother was -- I said yesterday she was a kind of legendary teacher. She died only a couple of years ago. And my brothers and I, we expected a small funeral. We expected not very many people to attend, a lot of -- I don't have a large family. And instead just tons and tons of people showed up. And we couldn't figure out who they all were....

And it turned out that these people who were then middle-aged -- you know, 30-year-olds, 40-year-olds, whatever -- they had had my mother as a sixth-grade teacher decades ago. And 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 anything." And she was really demanding. She was a really tough teacher. You know, it was not -- you didn't slide by in Mrs. Kagan's class. But she -- she -- 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 planned, but in this sort of strange way, I think, you know, part of my life is my father and part of my life is my mother: that part of my life has been in public service, I've been really 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 -- no, your left shoulder, right, on my side, and there's a student of mine right there. And maybe there is some other students that are around the room. And it's a kind of great thing....

We're doing our best to make Jeremy blush. (Laughter.)

(Laughs.)

But you know, these things that I -- I mean, each one of us, I think, can speak about what our parents -- what they brought to us. And it seems to me they gave you some pretty strong values....

So we -- that speaks about who you are as a person, and now we go to some of your legal abilities. And some have criticized your background or your legal arguments. They've even gone to what did you write on college papers....

The chairman of the Republican National Committee criticized you last month for agreeing with Justice Thurgood Marshall's observation that our Constitution as originally drafted was imperfect. The criticism surprised me because everything you read about the Founders, they knew that they would lay down something that would not cover every foreseeable thing. I mean, how could they possibly have foreseen what the country is today? They were -- they wrote in broad terms. They couldn't foresee every challenge....

So what's the -- what's your response to this criticism of you that was made because you agreed with Justice Marshall? How would you describe the way the Constitution has been amended since it was originally drafted?...

Well, Justice Leahy, the framers were incredibly wise men. And if we -- if we always remember that, we'll do pretty well, because part of their wisdom was that they wrote a Constitution for the ages. And this was very much in their minds. This was part of their consciousness. You know, even that phrase that I quoted yesterday from the preamble of the Constitution, I said the Constitution was to secure blessings of liberty. I didn't quote the next part of that phrase. It said "blessings of liberty for themselves and their posterity."...

So 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 are 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 that just means you have to be 30 year 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 they 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 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 a question....

The framers could have given like a whole primer on police practices -- you know, which searches were reasonable and which searches weren't reasonable and lots of different rules for saying that. But they didn't do that. And I think that they didn't do that because of this incredible wisdom that they had, that they knew that the world was going to change and that, you know, they didn't live with bomb-sniffing dogs and with heat-detecting devices --...

And computers and --

-- and computers and all these questions that judges, courts, everybody is struggling with -- police in the Fourth Amendment context. And I think that they laid down -- sometimes they laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they say, what they meant to do. So in that sense, we are all originalists....

And we also have made changes and in the -- in the Bill of Rights, my own state of Vermont didn't join the union till they saw that the Bill of Rights was going to be ratified. We did the 19th Amendment, expansion of votes for women; the 26th Amendment, the -- allowing 18-year-olds to go -- we've seen some major changes over the years....

Yesterday I talked about how the Supreme Court interprets Plessy versus Ferguson. It was overruled by Brown versus Board of Education. Same Constitution, but we -- people realize how changes are in society. I can't imagine anybody saying we should go back to Plessy 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 a Supreme Court confirmation hearing. I was here; I was a little bit further down the -- down the row 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 a meaningful discussion of legal issues....

Now, you set the standard. (Laughs.) You've probably re-read those words. How are you going to --

Many times. (Laughter.)

(Laughs.) I'll bet. I'll bet. As have I, and I guarantee you, as has every single member of this committee.

And do you know what? They've been read TO me many times, too. (Laughter.)

(Chuckles.) And probably will again. How are you going to live up to that standard?

Senator Leahy, before I answer that question, may I -- may I say a little bit more about what you started with about constitutional changes?

Sure.

Just to -- just to show my commitment to being open. All right?

Go ahead.

But you said something which just sort of triggered a thought in me, and 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 talked about the formal amendment process. And that's tremendously important....

So, you know, when Thurgood Marshall said that this was a defective Constitution, you know, he was talking about the fact that this was a Constitution that counted slaves as three-fifths of a human being, that didn't do anything about that original sin of our country. And the 14th Amendment changed that. The 14th Amendment was an enormous break the -- after the Civil War and created a different Constitution for America. So partly the changes come in that way....

But partly they come outside the formal amendment process as well. And what you said about Plessy and Brown is absolutely right. But 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 a historical matter....

But in Brown, the court said otherwise. And, you know, step by step by step, decision by decision, in large part because of what Justice Marshall did, you know, we got to a place where the court said it's inconsistent with the principle of equal protection of the laws that the drafters of the 14th Amendment laid down; it's inconsistent with that principle to have segregated schools. So that's a way in which change can happen as well....

Now, to go to your real question -- and I apologize for that digression -- I have looked at that -- at that book review many times, and 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 the Senate has a very significant role to play in picking Supreme Court justices, that it's important who serves on the Supreme Court, that everybody should treat it as important, and that the Senate should -- has a constitutional responsibility and should take that constitutional responsibility seriously, and also, that it should have the information 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 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 will 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 SG hearing, Senator Hatch and I had some conversation, because Senator Hatch said to me -- and 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 -- he basically said it's not just that people can ask you about cases coming -- 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. And if it's not right to say how you would rule on a case that's going to come before the court, or that might, then 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....

And 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 was going to another area. You've been solicitor general. You've argued a number of cases before the Supreme Court.

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 wasn't in the Senate at that time. But I was there when he was being nominated for chief justice. And I asked him about his refusal to recuse himself from a case called Laird versus Tatum. The Laird case involved the Nixon administration's surveillance of Americans....

As the Justice Department's legal expert, when he was working for the Justice Department for the Nixon administration, he testified before Congress about that case....

But then after his confirmation, he was part of a five-justice majority in the very case on which he had testified. And he voted to dismiss the complaint alleging unlawful surveillance of lawful citizens' political activity....

Now, I realize Supreme Court justices have to make up their own mind. I went back and forth with Justice Scalia about some things with his relationship, with a former vice president, and then ruling on cases involving him. I regularly as questions of nominees, not just for the Supreme Court but for other courts, about potential recusals....

Now, Senator Sessions and I sent you a questionnaire. And in that we had the question of recusal. And you answered -- it appears to me you take this very seriously....

Tell me about, what principles are you going to use to make recusal decisions? If you can, do it just briefly. But then tell us some of the cases where 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 there are probably about 10 cases. I haven't counted them up particularly. But I think that there are probably about 10 cases that are on the docket next year, in which that's true, in which I've been counsel of record on a petition for certiorari or some other kind of pleading....

So that's a flat rule. In addition to that, I said to you on that questionnaire that I would recuse myself in any case in which I've played any kind of substantial role in the process....

I think that that would include -- I'm going to be a little bit hesitant about this, because one of the things I would want to do is talk to my colleagues up there and make sure that this is what they think is appropriate too....

But I think that that would include any case in which I've officially, formally approved something. So one of the things that the solicitor general does is approve appeals or approve amicus briefs to be filed, in lower courts, or approve interventions....

The -- I wish you would look seriously at that. I was really shocked by former Chief Justice Rehnquist's position on the Laird case. I thought that was almost and 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 certainly people can expect the Supreme Court to rule on some cases where they may or may not agree with them. But so long as they have respect for the court, then they'll understand that....

If they see justices involved in cases in which they had a financial interest, which seems pretty clear-cut, or other direct interests, and then they rule on them, you could imagine this erodes the credibility of the court. And I'm very concerned about that, no matter whether it's a Republican president's nominee or a Democratic president's nominee....

Two years ago, in the District of Columbia versus Heller, the Supreme Court held the Second Amendment guarantees to Americans the individual right to keep and bear arms. I'm a gun owner, as are many people in Vermont, and I agreed with the Heller decision. And just yesterday, McDonald versus city of Chicago, the court decided the Second Amendment right established in Heller is a fundamental right that applies to the state as well as the federal government....

Now, 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 during hunting season. We try to give the deer a fighting chance. But otherwise, there are no rules. Is there any doubt, after the court's decision in Heller and McDonald, that the 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 is binding precedent, entitled to all the respect of binding precedent in any case. So that is settled law.

And as solicitor general, did you have a role in the president's domestic or foreign policy agenda?

The solicitor general does not typically take part in policy issues, and certainly -- the only policy issues I think that I might have taken part in -- and these are policy issues that would only overlap with litigation issues -- are some national security issues. But otherwise, you know, the solicitor general really is a legal officer....

And if you -- if you were, though, involved in domestic or foreign policy agenda, would that not be something that you'd want to consider in the issue of recusal? I mean, 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 that when Chief Justice Roberts and Justice Alito were before this committee for their nomination hearings -- they had worked for Republican presidents -- they assured senators that, as lawyers for a presidential administration, they were representing the views of the president. All my friends on this side of the aisle thought that was fine. And the reason I mention that is there is concerns some are 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 and Justice Alito that, as a lawyer working for a presidential administration, the policies you worked to advance were the views and policies of the president for whom you worked?...

Absolutely, Senator Leahy. I worked for President Bill Clinton, and we tried to implement his policy views and objectives.

Now, let me ask you this. We've heard talk about Harvard Law School and military recruiting when you were dean. And by enforcing a long-standing nondiscrimination policy -- you would provide military recruiters with access to students, coordinated by the Harvard Law Veterans Association, that had been successfully used for years under your predecessor, Dean Clark, with the approval of military recruiters and the Department of Defense. Did you ever bar recruiters for the U.S. military from access to students at Harvard Law School while you were dean?...

Senator Leahy, military recruiters had access to Harvard students every single day I was dean.

Well, let me ask you this. Did the -- did the -- while you were there -- 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 -- it's always been my experience also, if somebody wants to join the military, they usually are pretty motivated to join the military. And my youngest son joined the Marine Corps out of -- out of high school. There weren't recruiters on the high school campus. But he was able to find where the recruiter was in downtown Burlington, and walked over there and signed up. My wife and I are very proud of him for doing that....

But here there's been this implication given -- that's why I want you to clear this up -- the implication given that somehow military recruiters couldn't recruit Harvard students. That was not the case. Is that correct?...

That was not the case, Senator Leahy. The only question that ever came up -- as you stated earlier, this was a balance for the law school, because on the one hand we wanted to make sure absolutely sure that our students had access to the military at all times, but we did have a very long-standing -- going back to the 1970s -- anti-discrimination policy, which said that no employer could use the Office of Career Services if that employer would not sign an nondiscrimination pledge. That applies to many categories: race and gender and sexual orientation and actually veterans status as well. And the military could not sign that pledge....

Because of the "don't ask, don't tell" --

Because of the "don't ask, don't tell" policy.

-- which the chairman of the Joint Chiefs of Staff now says should be repealed.

I read a speech you gave to graduates of West Point three years ago. You said that military service is the noblest of all professions and those cadets served their country in this 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....

Well, 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 is, all students take a constitutional 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 ever gotten to be asked to be that person....

And I went up and I talked to the West Point students and faculty 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 and the students there. It was an incredible experience for me....

But -- and, you know, in addition, I mean, I tried in every way I could to make clear to the veterans of the military at Harvard Law School and people who were going to go into the military how much I respected their service, how much I thought that they were doing the greatest thing that anybody could do for their country....

Well, I tend to agree. I know we felt that way -- my wife and I felt that way about our son. We worried about him in the Marine Corps, but we were so proud of what he was doing....

In fact, speaking of Marines, I read a May 21 Washington Post op- ed from Robert Merrill. He's a captain in the U.S. Marine Corps. He's a 2008 Harvard Law graduate. He's serving as a legal adviser to a Marine infantry battalion in southern Afghanistan. I've been to that part of Afghanistan with our troops. It is not an easy place to be....

"If Elena Kagan is anti-military, she certainly didn't show it. She treated the veterans at Harvard like VIPs. She was a fervent advocate of our veterans association." He also writes: "I received perhaps the most thoughtful thanks of all just before graduating from Harvard Law School: The supposedly anti-military Elena Kagan sent me a handwritten note thanking me for my military service and wishing me luck in my new life as a judge advocate."...

I want to thank you for doing that, too. And I will put it in the record, Captain Merrill's -- Captain Merrill's op-ed.

Senator Leahy, that was -- this has been a sort of long process, this process, and 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 anybody's....

Well, I haven't met him, but I was very touched by it.

Senator Sessions.

SEN. JEFF SESSIONS (R-AL): Thank you, Mr. Chairman. And I value our relationship. And we've disagreed over documents and a few things, but I believe you've tried to handle this committee in a fair way, and nobody's had more experience at it....

And fundamentally, I hope that we have, Dean Kagan, a good hearing. I hope that 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, but if their approach to judging is such that I think allows them not to be faithful to the law, to not take the -- be able to honor that oath, which is to serve under the Constitution and 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.

Incidentally, thank you for those kind words.

Thank you, Mr. Chairman. And I meant that.

One thing I -- 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, there are 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, where asked -- 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 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're pretty clear, I think, but not always specific. But aren't you -- you're not empowered to alter that 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, that -- however inartfully -- that you take the Fourth Amendment, and you say there's unreasonable searches and seizures, and that provision stays the same unless it's amended. It's -- that's the provision. And then, the question is: What counts as an unreasonable search and seizure? And new cases come before the court, and the court 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 embedded in the precedent -- and the court, sort of step by step by step, one case at a time, figures out what the Fourth -- how the Fourth Amendment applies....

Well, I do believe that there are some out there who think the court really has a(n) opportunity to update the Constitution and make it say what they'd like it to say. I know we've seen a bit of 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....

Your former colleague at the University of Chicago, Richard Epstein, 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 continued to exert itself -- he's talking about today -- long past the New Deal and 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, and I think the American people are....

Greg Craig, former chief counsel to President Obama, who's known you for some time, I understand, said of you, "She is largely a progressive in the mode 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 agree with you to the extent that you're saying, look, judging is about considering a 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, 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 a 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 a judge's personal views are....

Well, yeah, I agree, but the point I just wanted to raise with you is that this idea, this concept of legal progressivism, is afoot. I noticed E.J. Dionne in yesterday's Washington Post had an article, started off second paragraph as saying, "Democratic senators are planning to put the right of citizens to challenge corporate power at the center 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 Louis Brandeis." 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 Klain, who served on -- chief counsel of this committee, a skilled lawyer, was Vice President -- 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 Mikva, clerked for Justice Marshall, worked in the Clinton administration, in 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 --

No, but 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've worked in two Democratic administrations. Senator Graham suggested yesterday, and I think he's 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 and the way I would --...

Well, but I agree with you exactly, that you're -- you should not be condemned for being a political believer and taking part in the process and having views. But I'm asking about his firm statement that you're a legal progressive, which means something. I think he knew what he was talking about. He's a skilled lawyer who's been in the midst of the great debates of this country about law and politics, just as you have. And so I ask you again, do you think that is a fair characterization of your views? Certainly you don't think he was attempting to embarrass you or hurt you in that process, do you?...

I love my good friend Ron Klain, but I guess I think that people should be allowed to label themselves. And that's -- you know, I don't know what that label means, and so I guess I'm not going to characterize it one way or the other....

Well, I will just say, 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 one in the theme of the legal progressives....

Now, as you -- one of the things that we want to test, I guess, is your willingness to follow the law even if you might not agree with it. And Senator Leahy has asked you about the -- 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 -- well, when you became dean?...

Senator Sessions, the military had full access to our students at all times, both before I became dean and during my --

That's not the question. I know that --

Let her answer the question.

All right. But, you know, I -- go ahead.

So the history of this is, Harvard did have this anti-discrimination principle; and for many, many years my predecessor, who was 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 that could not sign the anti- discrimination pledge....

And the accommodation that Bob worked out was that the veterans 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 veterans organization....

Please let me follow up on that. But in -- August 26th of 2002, Dean Clark, your immediate predecessor, acquiesced when Harvard's financing had been threatened by the federal government for failure to comply with the law, which requires not just access, but equal access, to the office 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," close quote....

So that was 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 DOD, the Department of Defense, had been very --

Well, not for many years -- or how many -- well, go ahead.

For a number of years, for a great number of years the Department of Defense had been very accepting, had approved the accommodation that we had worked out. You're quite right that in 2002 DOD 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 acquiesced and agreed to do so.

And Dean Clark agreed to do so. And that continued --

Under direct threat of cutting off of funds. And otherwise, he indicated in his statement, he would not have done so.

Now, when you became dean, you personally opposed the "don't ask, don't tell" policy, and felt strongly about it, did you not?

I do oppose the "don't ask, don't tell" policy.

And you did then.

And I did them.

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. And you said that not within six months or so of becoming dean. And that was the e-mail you sent to the entire law school....

Senator Sessions, I have repeatedly said that I believe that the "don't ask, don't tell" policy is unwise and unjust. I believed it then and I believe it now....

And 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 also trying to protect our own anti-discrimination policy and to protect the students whom it is -- whom the policy is supposed to protect, which in this case were our gay and lesbian students. And we tried to do both of those things....

Well, you couldn't do both, as it became clear as time went on. 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 our policy of non-discrimination and directly impact our students. The first is 'don't ask, don't tell.' The second one is the Solomon amendment, which effectively forces educational institutions to make exceptions to their non-discrimination policy." So you sent that out to the -- you said that at that meeting....

And in addition to that, a lawsuit was filed in a distant circuit, the 3rd Circuit, and you participated in the filing of a brief attacking the "don't ask, don't tell" policy. Is that correct?...

Senator Sessions, that's not quite correct. The lawsuit itself brought a constitutional 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 was to argue, try to argue that Harvard's accommodation, which allowed the -- which, you know, welcomed the military on campus, but through our veterans' organization. What we tried to argue -- that that accommodation was consistent with the Solomon amendment, and that's what we argued to the 3rd Circuit....

Well -- and eventually Supreme Court did not agree with that. But after the 3rd Circuit ruled, 2 to 1, questioning the constitutionality of the statute, you immediately, the very next day, changed the policy at Harvard and barred the military from the Office of Career Services, the equal access the Solomon amendment had required. Is that correct?...

Senator Sessions, after the 3rd Circuit ruled the Solomon amendment unconstitutional -- and the 3rd Circuit was the only appellate court to have issued a decision on that question and did rule the Solomon amendment 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 onto the campus, but through the auspices of the veterans' organization, rather than through the auspices of our Office of Career Services....

Well, the veterans weren't interested in taking on that burden, and that was not the equal access that the Solomon amendment, which I worked on to pass, required. Our 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 campuses....

Now isn't it a fact that the mandate or the injunction never issued by the 3rd Circuit, that the 3rd Circuit holding did not apply to Harvard at the time you stopped complying with the 3rd -- 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 -- had continued 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 3rd Circuit decision, that it wanted law -- 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 funds from Harvard --...

Well, you did not do, Miss Kagan -- you didn't do what the DOD asked you to do. Just answer this -- put your legal hat on for a second. The 3rd Circuit opinion never stayed the enforcement of the Solomon amendment at Harvard, did it? Did -- that law remained 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 3rd 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 3rd Circuit really hasn't changed matters, because we're going to take this to the Supreme Court, and we want law schools really to ignore what the 3rd Circuit said, DOD and we had some discussions, and we went back to doing it exactly the way DOD wanted to. It's interesting --...

Well, let's -- let's getting 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've gotten from the Department of Defense say that the Air Force and the Army says they were blocked, they were stonewalled, 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've continued 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 recruiters were going to be at Harvard during that recruiting season, and military recruiting went up that year, not down....

Well --

Now, you're exactly right that the Supreme Court did reject our amicus brief. Again, we filed an amicus brief, not attacking the constitutionality of the Solomon amendment, but instead saying that essentially the Harvard policy complied with the Solomon amendment. The Supreme Court rejected it 9 to 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. And they -- 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 ask them what they ask 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 --...

After --

-- policy. And the president of the university overruled your decisions. 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 that what we were doing was inappropriate, we should, in fact, reverse what we had done. You know, that period lasted for a period of a few months in 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's your testimony that the decision you made immediately after the Third Circuit opinion, you concluded was inappropriate -- you and -- 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've 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 that it thought that 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....

Well, 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 said -- 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. The protest that you had, what you spoke to on campus, was at the very time -- in 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, that 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 that you value the military, I really don't. But I do believe that the 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 the line for America every day?...

Senator Sessions, you're of course right that the Solomon amendment is law passed by Congress. The -- and -- 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....

Well, 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 -- while you would do all those things simply to deny what Congress required, that they have 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. And 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. That's --...

Well, while -- I would just say, while my time is running down, I'm just a little taken aback by the tone of your remarks, because it's unconnected to reality....

I know what happened at Harvard. I know you were 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 --

It's just surprising to me that it did --

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 -- 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....

And those are the two things that I tried to do. And I think, again, the military always had good access at Harvard Law School.

Senator Kohl.

That somehow just --

Senator Kohl.

SEN. HERB KOHL (D-WI): Thank you so much. Thank you so much, Senator Leahy.

General Kagan -- (turns on microphone) -- thank you. General Kagan, you will testify this week for many hours regarding your philosophy, your approach to judging, as well as many specific legal issues. And yet, one question that I suspect most of the American people are most curious about is the simplest but perhaps the most important one. Why do you want to be a Supreme Court justice?...

Anyone in your position would be flattered and highly honored to be nominated to the Supreme Court, because it is the pinnacle of the legal profession. But whatever this appointment means to you, what is most important to us is what it will mean for the American people. So, please tell us, why do you want to serve on the Supreme Court? What issues motivate you the most, and what excites you about the job?...

Senator Kohl, it's an opportunity to serve this country in a way that, you know, fits with whatever talents I might have. I believe deeply in the rule of law. The Supreme Court is the guardian of the rule of law. And to be on the Supreme Court and to have that significant and, indeed, awesome responsibility to safeguard the rule of law for our country is an honor that comes to very few people, and is -- it's just an opportunity to serve and -- and, you know, that's -- that's -- that's it....

Well, I appreciate that very much, but as we said, it's a tremendous honor, clearly, to serve and to safeguard the rule of law. And I'm sure you feel you're capable of doing that. But what are the issues that bring you here today? What are the things you feel most passionate about? How are you going to make a difference as a Supreme Court justice from any of the others who might be sitting here instead of you today?...

Well, Senator Kohl, I do think that what motivates me primarily is the opportunity to safeguard the rule of law, whatever the issues that might come before the court, and I think that that's the critical thing. If you don't have a rule of law, if you don't have an independent judiciary that enforces rights, that enforces the law, then no rights are going to be safe or protected. And I think that has to be first and foremost in every judge's mind, not in the way a legislator, you know, might care about some particular issue -- I care about the environment or I care about the economy or something like that....

A judge can't think that way. It's -- a judge is taking each case that comes before her and is thinking about how to do justice in that case and is thinking about how to protect the rule of law in that case, how to enforce the law whether it's the Constitution or a statute....

I'm sure that those things are true. But Thurgood Marshall cared passionately about civil rights. Justice Ginsburg had a passion for women's rights. Your father had a passion for tenants' rights....

I'm sure you're a woman of passion. Where are your passions?

Senator Kohl, I think I will take this one case at I time if I'm a judge. And I think I will try to evaluate every case fairly and impartially, try to do justice in that case....

I think it would, you know, not be right for a judge to come in saying, oh, I have a passion for this and that and so I'm going to, you know, rule in a certain way with regard to that passion....

I'm much more a person who -- I look at an issue before me, a case that might come before me, try to figure out what's right with respect to that issue, with respect to that case....

And if you're a judge of course, that means trying to figure out what's right on the law.

Many Americans following the Supreme Court and our hearings may feel like the Supreme Court is remote and has no impact on their day-to-day lives. So tell us how you are going to help the American people. Should you be confirmed, how are you going to make a difference in their lives?...

Senator Kohl, I think a judge's job is just to decide each case. And it's hard to say exactly how a judge would make a difference in their lives, because you just don't know which cases are going to come before you....

It's not like a legislature, where you get to kind of craft an agenda and say, this year, we're going to do the following three things, we're going to work on energy legislation or we're going to work on civil rights legislation....

You know, for a judge, it's case by case by case. That's I think the right way for a judge to do a job, is one case at a time, thinking about the case fairly and objectively and impartially....

And in the course of doing that of course, people's lives change, because law has an effect on people. And you hope very much that law improves people's lives and has a beneficial effect on our society. That's the entire purpose of law....

But this isn't a job I think where somebody should come in with a particular substantive agenda and try to shape what they do, to meet that agenda. It's a job where the principle responsibility is deciding each case, listening to the parties in that case fairly and objectively and trying to make a good decision on the law....

Well, that's true. But it is also true as you know that the Supreme Court decides which cases to take up.

There are thousands of cases that come before you, for you collectively as justices to decide on which ones you will hear. So you're not just processing cases as they are placed before you. You and the other justices decide which cases you are going to -- you are going to judge....

So let me ask you this question. Which ones will motivate you?

Senator Kohl, you're exactly right that the Supreme Court does decide which cases to hear. It's a highly discretionary docket. There are about 8,000 certiorari petitions every year. And only about 80 of them are now taken by the Supreme Court, so maybe one in 100. And, but there are some pretty settled standards for deciding which cases to take....

The first thing always is if there's a circuit split, because what the Supreme Court does -- one of the principle roles of the Supreme Court is to apply uniformity across our country, so that if one court says X and another court says Y and another says Z, with respect to the same issue, the Supreme Court is the one that says, we have to take this case, so we can just set a clear rule, state what the law is, so that everybody then can follow it across the country. So that's one reason why the court typically grants cert on a case....

Another set of cases where the court very typically; often; almost always grants certiorari is when a legislature -- excuse me, when a -- when a -- when another court has invalidated an act of Congress, when a court has said that an act of Congress is unconstitutional. And there the court almost always says, well, acts of Congress -- that's a serious thing, to invalidate an act of Congress. You know, for the most part we want to defer to the legislative branch, to the decisions of our elected branches. So that's such a serious thing that the court is going to take that case....

And then I suppose that there's a third category of cases, which is just extremely important legal issues -- you know, cases where it's -- there's not a conflict among the courts of appeals and there's no invalidation of an act of Congress, but the case presents some just strikingly significant legal issue that it's appropriate for the Supreme Court to consider and to issue a decision on. And I think, you know, in each year there's some number of those cases....

General Kagan, as many of us said yesterday, we appreciate the perspective that you would bring to the court as someone who has not been a judge. As Senator Feinstein said, that's a refreshing quality. And we appreciate the many thousands of documents that you've made available to us from your work throughout your career. Yet they shed little light on your judicial philosophy or how you would analyze and evaluate problems as a judge. That is why these hearings are so important, so that the American people can get a sense of what your judicial philosophy is....

At his confirmation hearings, Justice Alito said, quote, "If you want to know what sort of a justice I will be, look at what sort of a judge that I have been." And other nominees have said similarly. Since we do not have a judicial record for you, how should we evaluate you so that we do have an idea as to what kind of a justice you will be? What decisions or actions can you point to in your past and in your career that demonstrate to us what kind of a justice you will be?...

Senator Kohl, I think you can look to my whole life for indications of what kind of a judge or justice I would be. I think you can certainly look to my tenure as solicitor general and the way I've tried to approach and handle that responsibility. I think you can look to my tenure at Harvard Law School and think about the various things I did there of -- and the -- and the approach that I took. I think you can look to my scholarship, to my speeches, to my talks of various kinds....

So I think it may not be quite so easy as with a person where you can just say, well, I'll read this body of decisions. But I think I've had a -- very much a life in the law, a very public life in the law. Senator Schumer referred yesterday to all my scholarship, to all my talks. And I think, you know, you can look to all those things....

I hope what they will show -- and this is for the committee to determine -- but I hope what they will show is a person who is -- who listens to all sides, who is fair, who is temperate, who is -- who has made good and balanced decisions, whether it's as solicitor general or whether it's as dean of Harvard Law School or in any other capacity....

Well, I think this is a good time to refer to your 1995 law review article in which you criticized Supreme Court nominees --

It's been half an hour since I heard about that article. (Laughter.)

Here we are. You said back then, when the Senate ceases to engage nominees in meaningful discussions of legal issues, the confirmation process takes on air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public....

However, more recently, in the meeting that we had, you indicated that you had reconsidered these views. And I think we're getting some indication of that here at the moment....

How do you feel about that reconsideration versus what you said back in 1995?

Well, Senator Kohl, I do think that much of what I wrote in 1995 was right, but that I in some measure got a bit of the balance off. So what I wrote in 1995 was that the Senate had an important role to play, that the Senate should take that role very seriously, that the Senate should endeavor to think about what a nominee was -- what kind of justice a nominee would make, and that that was all appropriate. And I also said that I thought it was appropriate for nominees to be as forthcoming as they possibly could be. And I continue to believe that, and I am endeavoring and will endeavor to do so....

I did think, as I -- as I suggested earlier, that I got the balance a little bit off. I said then, even then in that 1995 article, that it was inappropriate for a nominee to ever give any indication of how she would rule in a case that would come before the court. And I think, too, it would be inappropriate to do so in a somewhat veiled manner by essentially grading past cases....

But I do think it's very appropriate for you to question me about my judicial philosophy, on the kinds of sources I would look to at interpreting the Constitution or interpreting a statute, about my general approach to judicial decision making, about the degree to which I will defer or not defer to acts of Congress and the states. I mean, all of those things, I think, ought to be a subject of debate....

Well, back in that 1995 article, you wrote that one of the most important inquiries for any nominee, as you are here today, is to, quote, "inquire as to the direction in which he or she would move the institution." In what direction would you move the court?...

Senator Kohl, I do think that that is the kind of thing that I -- all I can say, Senator Kohl, is that I will try to decide each case that comes before me as fairly and objectively as I can. I can't tell you I'll move the court in a particular way on a particular issue, because I just don't know what case --...

Well, you said -- you said in 1995: "It is a fair question to ask a nominee in what direction" -- this is your quote -- "would you move the court."

Well, it might be a fair question. (Laughter.)

Not going to get necessarily a -- (chuckles) -- all right. Let's move on.

Comparison to others (judges ?), General Kagan. The basic purpose of this hearing is to learn what kind of a person you are and what kind of a justice you will be when you're confirmed. One way that we gain insight into your judicial philosophy is to learn which justices you most identify with. Yesterday, you spoke highly of Justice Stevens and said his qualities are those of a model judge. In addition to Justice Stevens, can you tell us the names of a few current justices or justices of the recent past with whom you most identify in terms of your judicial philosophy and theirs?...

Well, I do very much admire Justice Stevens, and I wanted to say so as he left the court, because I think he has done this country a long and honorable service, that he has been a simply marvelous justice in his commitment to the rule of law, in his commitment to principle....

That's not to say that Justice Kagan -- if so lucky as to ever be called that -- Justice Kagan would be Justice Stevens. It's just to say that I have great admiration for the contribution that Justice Stevens has made -- over many period(s) of years obviously -- but Justice Stevens' contribution to the court is not calculable in years. It's this extraordinary commitment to the rule of law that was there in his first year and is there in his last....

I think it would be just a bad idea for me to talk about current justices. And I've expressed, you know, admiration for many of them.

My, oh my, oh my. (Chuckles.) All right. Let's move on. (Laughter.)

General Kagan, to help us understand what kind of a justice you would be if you're confirmed, I'd like to briefly describe the philosophies of two justices, ask you which comes closest to your view....

Justice Scalia considers himself to be an originalist who interprets the Constitution by looking solely at the text. He rejects the notion of a living Constitution and only gives the text of the Constitution, quote, "the meaning that it bore when it was adopted by the people in 1787."...

In contrast, Justice Souter has criticized his purely textual approach as having, quote, "only a tenuous connection to reality." He believes that the plain text of the Constitution as written in 1787 does not resolve the conflict in many of today's tough cases. Rather, Justice Souter believes judges must look at the words and seek, quote, "to understand their meaning for living people."...

Which view of the constitutional interpretation comes closer to your view, and why?

Senator Kohl, I don't really think that this is an either/or choice. I think that there are some circumstances in which looking to the original intent is the determinative thing in a case, and other circumstances in which it is likely not to be. And I think in general, judges should look to a variety of sources when they interpret the Constitution; and which take precedence in a particular case is really a kind of case-by-case thing....

The judges always should look to the text. There's no question that if the text simply commands a result -- senators, you know, 30 -- you can only be a senator if you're 30 years old -- then the inquiry has to stop. But there are many, many provisions of the Constitution, of course, in which that's not the case....

When that's not the case, when the text -- when the text is subject to one or more interpretations, then often you look to the original intent, and you consider that original intent carefully....

An example of that is in the Heller case, the gun case, where actually all nine justices in that ruling looked to the original intent. They had different views of what the original intent was, but all nine of them thought it was important and appropriate to actually think about what the Framers had intended when they wrote that language, which of those two meanings -- the individual right or the collective right -- they had in mind....

But in other cases the original intent is unlikely to solve the question. And that might be because the original intent is unknowable, or it might be because we live in a world that's very different from the world in which the Framers lived. In many circumstances, precedent is the most important thing....

One good example of this is an interpretation of the First Amendment, where the -- the court very rarely actually says, you know, what did the Framers think about this. The Framers actually had a much more constricted view of free-speech principles than anybody does in the current time. And when you read free-speech decisions of the court, they're packed with reference to prior cases rather than reference to some original history....

So I think it's a little bit case by case by case, provision by provision by provision. And I would look at this very practically and very pragmatically: that sometimes some approach -- one approach is -- will -- is the relevant one and will give you the best answer on the law, and sometimes another....

I'd like to talk about antitrust a little bit, General Kagan. As you know, it's now been 120 years since the passage of the Sherman Act, our nation's landmark antitrust law. For more than a century, this measure has protected the principles that we hold most dear: competition, consumer choice, and giving all businesses a fair opportunity to succeed or fail in the free market. So that -- so those of us who are strong believers in our free market, capitalistic economic system should also support antitrust law, I believe....

In the words of the Supreme Court in 1972, antitrust law is a, quote, "comprehensive charter of economic liberty." Recently, however, we've seen many industries become increasingly concentrated and consumers having fewer choices. In the last few years we've seen a series of antitrust cases at the Supreme Court in which the Supreme Court majority has sided with the defendant and, as a result, made it more difficult for consumers and competitors to bring their antitrust cases....

Many are concerned that the cumulative effect of these cases has harmed consumers because they are the ones who will suffer by paying the high prices that result from unchallenged anticompetitive practices. These cases include the Leegin, Twombly and Trinko cases, among others. Do you share this concern? Should we be worried that as a result of these cases, we've reached a tipping point where the antitrust laws may not be protecting consumers as much as they were intended to do?...

Senator Kohl, I know that several of those cases you mentioned are ones in which there is considerable debate. The Leegin case is a good example. The Leegin case is one on which the court overturned a very long-term precedent, a many, many decades precedent, maybe a hundred years, Dr. -- the Dr. Miles precedent....

And the courts did so really on the basis of new economic theory, new economic understandings. But there's some question, to be sure, as to how new economic understandings ought to be incorporated into antitrust law. There the question was how one should look at vertical agreements, rather than horizontal agreements, agreements between a manufacturer and a distributor, and the question of whether those agreements are per se uncompetitive or whether they should be subject to more of a rule of reason analysis. And I believe the court had held that they were per se uncompetitive, noncompetitive, and -- or per se violative of the antitrust laws, and changed that to a rule of reason analysis....

I think, on the one hand, it's clear the antitrust law needs to take account of economic theory and economic understandings, but needs to do so in a careful way and to make sure that it does so in a way that is consistent with the purposes of the antitrust laws, which is to ensure competition; which is, as you say, to be a real charter of economic liberty....

Well, let's talk about the Leegin case. That was a 5-4 decision in which the Supreme Court in 2007 overturned what you correctly referred to as a 96-year-old precedent and held that a manufacturer setting retail prices no longer automatically violated antitrust law. This means, as a practical matter, a manufacturer is now free to set minimum retail prices for his products and prohibit discounting....

What do you think of this decision? Do you think it was appropriate for the Supreme Court, by judicial fiat, to overturn a nearly century-old decision on the meaning of the Sherman act that businesses and consumers had come to rely on and which had never been altered by Congress?...

Well, Senator Kohl, I think that that decision does present the questions that we just talked about, which is, you know, how sort of new economic theory ought to be incorporated into antitrust law. And it's -- and especially to the extent that the court has already ruled on a case, to the extent that the court already has settled precedent in the area, it does raise the question of what it takes to reverse a precedent, a question on which there is a large body of law....

I'm not going to grade the Leegin decision, but I do recognize very much the concern that some have said about it, which is this question of when you have precedent in the area, when the antitrust laws have been interpreted in one way over time, and new economic understandings, new economic theory might suggest a different approach. How one balances those two things -- I think that that's a very important question for the court going forward....

General Kagan, how do you feel about permitting cameras in the Supreme Court for oral arguments?

Well, Senator Kohl, this is actually something that I spoke about when I was -- as solicitor general, before I was ever nominated to this court. So I have expressed a view on this question, and I recognize that some members of the court have a different view. And certainly when and if I get to the court, I will talk with them about that question....

But I have said I think that I think it would be a terrific thing to have cameras in the courtroom. And the reason, I think, is as -- when you see what happens there, it's an inspiring sight....

I guess I talked about this a little bit in my opening statement yesterday. I basically attend every Supreme Court argument. You know, once a month I argue before the court. When I'm not arguing, I'm sitting in the front row, watching one -- some member of my office or somebody else argue. And it's an incredible sight, because all these -- all nine justices -- they -- they're so prepared, they're so smart, they're so thorough, they're so engaged. The questioning is rapid-fire. You're really seeing an institution of government at work, I think in a really admirable way....

And so I think -- and of course the issues are important ones. I mean, not -- some of them will put you to sleep, you know. (Laughter.) But a lot of them the American people should be really concerned about and should be interested in. And so I think it would be a great thing for the institution and, more important, I think it would be a great thing for the American people....

Having said that, I mean, I have to say, I understand that some of the current justices have different views, have different -- have concerns about it maybe that they think it would actually change the way the Supreme Court arguments do work....

And I would, you know, very much want to talk with them about those views. And you know, on almost every issue, I'm open to being persuaded that I'm wrong. But on this one, I have expressed a real view. And it's the one I hold, is that it would be a great thing for the court and it would be a great thing for the American people....

All right.

General Kagan, we all understand that you may be reluctant to comment on cases that will or are likely to come before you. I'd like to ask you a question about a case that the Supreme Court will certainly never see again, the 2000 presidential election contest between President Bush and Vice President Gore....

Many commentators see the Bush v. Gore decision as an example of the judicial improperly injecting itself into a political dispute. What is your view of that, of the Bush v. Gore decision? And was the Supreme Court right to have gotten involved in the first place, General Kagan?...

Senator Kohl, I think I might disagree that it's -- that it's the kind of decision that will never come before the court again. Of course, you're right that it will never come before the court again....

But the question of when the court should get involved in election contests, in disputed elections, is I think one of some magnitude that might well come before the court again....

And if it did, you know, I would try to consider it in an appropriate way and -- reading the briefs and listening to the arguments and talking with my colleagues....

I think it is an important -- an important question and a difficult question about how an election contest that at least arguably the political branches can't find a way to resolve themselves -- what should happen, and whether and when the court should get involved....

It's hard to think of a more important question, in a democratic system, and maybe a tougher one.

Do you believe when these hearings are over this week, the American people should have a pretty good idea of what your judicial philosophy is?

I hope that they will, Senator Kohl. And as we go around the room and people talk to me, about the way in which I would decide cases, the approach I would use -- just the way you asked me about, you know, would I just look to the original intent or would I look to a broad variety of sources and when and where -- I hope that the American people will get a sense of how I would approach cases....

Thank you.

So that people will understand what's going on, I mentioned to some of the senators up here, I'm going to yield to Senator Hatch for his round, then Senator Feinstein for her round. We'll then take a 10-minute break. We're trying to -- if this works right, to break for lunch around 1:00....

We have a vote, and I'm double-checking to make sure whether it is set for 2:15. If that's the case, we would vote -- several of us would vote at the desk and come back immediately, so that we could start about 2:20 after lunch. But after these two senators ask their questions, we'll break for 10 minutes....

Senator Hatch.

SEN. ORRIN HATCH (R-UT): Well, thank you, Mr. Chairman.

You're doing well. Relax as much as you can. I'm going to ask you a series of questions, some of which just ask for a yes or no. To the extent that you can do that, I'd appreciate it. But you know, you can do whatever you want to do, how's that?...

General Kagan, I want to begin by discussing freedom of speech in general and campaign finance reform in particular. As you know, the first word in the First Amendment is "Congress."...

Now, I know that the Supreme Court has said that the First Amendment also limits state government. But do you agree that the -- that America's founders were first concerned about setting explicit limits on the federal government, in areas such as freedom of speech?...

There's no question that the First Amendment limits what Congress and what other state actors, executive officials and -- can do.

Okay.

The Supreme Court has said that the First Amendment protects some types of speech more strongly than others and even that it does not protect some types of speech at all....

Do you agree that the Supreme Court has held repeatedly that political speech, especially during a campaign for political office, is at the core of the First Amendment and has the First Amendment's strongest protection?...

Political speech is at the core of the First Amendment. I think that that has been said many times by the court.

Yeah. I think one of the great examples -- Eu v. San Francisco County Democratic Central Committee, back in 1989, really -- it came 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, quote: "It is unfortunately true that almost any meaningful campaign finance reform proposal 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," unquote....

Now, as I understand it, President Harry Truman argued as far back as 1947 that a ban on independent expenditures would be, quote -- a, quote, "dangerous intrusion on free speech," unquote. The notion that spending and speech are necessarily related is hardly new, and hardly confined to the Supreme Court, or even one political party. Do you recognize -- or, excuse me, do you -- do you reject the idea that spending is speech?...

Senator Hatch, those -- the quote that you read, I believe, was not written by me in my voice. It was a set of talking points that I prepared for -- I'm not sure if it was for the president, for President Clinton, or if it was for the press office. But it was meant to reflect the administration's position at the time. The administration was trying very hard to enact the McCain-Feingold bill, and those talking 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 it was just a set of talking points that I prepared for -- I think it was the press office. It might have been for the president himself....

Well, you were listed as the creator.

I've created a lot of talking points in my time. (Laughter.)

(Laughs.) Okay. Okay, I accept that.

I want to turn to the Supreme Court's decision in Citizens United v. FEC for a little bit. I've seen media reports that in a meeting with at least one of your colleagues on this committee, you said that you believed the Citizens United case was wrongly decided. Is that true?...

Senator Hatch, I argued the case, of course. I walked up to the podium and I argued strenuously that the bill was constitutional, that the --

But I'm asking about your belief.

And over the -- over the course -- at 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 first 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 in this case prohibited different types of for-profit corporations, nonprofit corporations and labor unions from using their regular budget to fund speech by candidates or election issues within 30 to 60 days of a primary or a general election. They could form separate organizations called PACs, political action committees, to do so, but they did not have the freedom to use their own money directly to speak about candidates or issues as they saw fit....

Now, I know there's a lot of loose rhetoric about the decision in this case allowing unlimited, quote, "spending on elections," unquote. I assume that it is -- that is to conjure up images of campaign contributions or collusion. But just to clarify the facts, the statute in the Citizens United case involved what are called independent expenditures, or money spent by corporations, nonprofit groups or unions, completely on their own, to express their political opinions. Now, this case had nothing to do with contributions to campaigns or spending that is coordinated or connected in any way with candidates or campaigns. Isn't that true?...

You're right, Senator Hatch --

Yes.

-- that this is an independent-expenditure case, rather than a contributions case.

Right. When President Obama announced your nomination, he said that you believed that, quote, "in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens," unquote. Virtually 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 organization sued to defend its freedom-of-speech rights. Do you agree that many people join or contribute to nonprofit advocacy organizations because they support the positions and message of those groups, and because those groups magnify the voice of their members and their contributors?...

I do agree that civic organizations are very important in our society, Senator Hatch --

Well, these aren't just civic organizations. I'm talking about unions and businesses and nonprofits and profits, and partnerships and S-corporations, and a lot of others....

Yes, you're right that the -- that the statute that the government defended in the Citizens United case was a statute that applied to many different kinds of corporations....

That's right.

And one of the things that the government suggested to the court in the course of its arguments was that one -- 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, quote, "a victory for powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans," unquote. Now, as I said, the statute applied to for-profit corporations, nonprofit corporations and labor unions....

Do you believe that -- let's just take unions. Do you believe that they are, quote, "powerful interests that drown out the voices of everyday Americans"?

Senator Hatch, what the -- what 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 corporations generally, and by unions generally, on the political process; and that what the Congress had found was that these corporations and unions had a kind of access to congressmen, had a kind of influence over congressmen that changed outcomes, that was a corrupting 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's what we tried to argue to the court....

I understand the argument. But the statute banning political speech that was challenged in Citizens United also applied to small S-chapter corporations that might have only one shareholder. There are more than four and a half million S-corporations or S- chapter corporations in America. We have 56,000 in my home state of Utah alone. These are small companies who want the legal protections that incorporating provides. These are family farmers, ranchers, mom- and-pop stores and other small businesses....

Before the Citizens United decision, these small family businesses could be barred from using their regular budget for, say, a radio program or even a pamphlet opposing their congressman for his vote on a bill if it was that close to an election. Now, do you believe the Constitution gives the federal government this much power?...

Senator Hatch, Congress determined that corporations and trade unions generally had this kind of corrupting impact on -- on --

No, I'm talking about all of these four and a half million S -- small corporations as well.

Senator Hatch, of course, in the solicitor general's office we defend statutes. And Congress determined --

No, no, I understand that.

(Off mike.)

Let me ask my questions the way I want to.

Let her answer the question.

I will. I'm going to be fair. I intend to be. And you know that, after 34 years. (Laughter, laughs.)

Go ahead, I -- 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 as hell, I'll tell you. (Laughter.)

And it gets the spotlight off me, you know? (Laughter.) So I'm -- I'm all for it, go right ahead.

I can see that. And by the way, I've been informed that Hell is not boring, so I -- (laughs) -- you can imagine what I mean by that.

Just hot.

Okay.

I have the current volume -- the current volume of the code of federal regulations. Now, this is governing federal campaign finance. It's 568 pages long, this -- this code. This does not include another 1,278 pages of explanations and justifications for these regulations, nor does it include another 1,771 Federal Election Commission advisory opinions, even more enforcement rulings, and still more federal statutes....

Now, 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 of this? This is just part of it, I -- there are thousands of other pages of regulations -- likely hire an election law attorney and jump through all the hoops of forming a political action committee, with all of its costs and limitations, simply to express an opinion in a pamphlet or in a radio or a movie or just to criticize their elected officials? Do you really believe the Constitution allows that type of requirement?...

Well, Senator Hatch -- I want to say, Senator Hatch, you should be talking to Senator Feingold. But I won't do that.

(Laughs.)

Senator Hatch, Congress made a determination here. And the determination was that corporations and unions generally had this kind of corrupting influence on Congress when they engaged in independent --...

But you acknowledged that it covered all these other smaller groups and all these other groups that should have a right to speak as well.

The solicitor general's office of course defends statutes as they're written. And Congress made the determination broadly that corporations and trade unions had this corrupting influence on Congress....

And in the solicitor general's office -- we in the solicitor general's office, as other solicitor general's 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 was an 100,000- page record about the corrupting influence of independent expenditures made by corporations and unions....

I understand.

Now, 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....

But the position that we took was to defend the statute, which applied broadly.

No -- I agree -- I have no problem with that, because that was your job. But I'm getting into some of the comments -- by some of our colleagues, the president 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 speech and public purpose emphasized the need to examine the motive behind speech restrictions. Since you've already written about this, I would like to know whether you personally agree with the Supreme Court in the Citizens United decision that, quote, "speech restrictions based on the identity of one speaker are all too often simply a means to control content," unquote....

Do you agree with that?

Senator Hatch, speaker-based restrictions do usually get strict scrutiny from the Supreme Court and for the reason that you suggest, which is a concern about why it is that Congress is saying 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 -- 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 other not....

Well, one part of Congress would protect incumbents. The others would be trying to throw them out. (Laughter.) I mean, that's what this system --

But I said to Justice Scalia, and I think it's true with respect to the McCain-Feingold bill, that all the empirical evidence actually 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 protect incumbents....

And notwithstanding that, in the McCain-Feingold bill, Congress determined that it was necessary in order to prevent corruption to prevent those expenditures. But you know, the court said no....

Well, tell that to Blanche Lincoln, how incumbents are protected.

In this case, the speech in which Citizens United -- I think about Blanche Lincoln, one of the nicer people around here, who had $10 million spent against her by the unions, just because they disagreed with her on one or two votes....

I mean, you know, and let me -- let me keep going now -- in this -- and I'm enjoying our colloquy together.

Me too.

In this -- I hope so.

In this case, the speech in which Citizens United wanted to engage was in the form of a movie about a presidential candidate, Hillary Clinton, at the time. The deputy solicitor general first argued the case, the deputy solicitor general from your office....

He told several justices that if a corporation of any size, a union 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 that criticized a political candidate but an electronic book available on devices such as the Kindle -- even a 500-page book that had only a single mention of the candidate, not only print or electronic books but also a newsletter -- 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 engaging in any political speech in any of those forms?...

Senator Hatch --

I'm not blaming you for the prior argument, nor am I really blaming the person who was 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; that's for corporations and unions, when they make independent expenditures within a certain period of a -- of an election --...

Right.

-- the statute does not distinguish between movies and anything else.

Well, as you can see, I'm finding a certain amount of fault with that, and that's why the Citizens United case, I think, is the correct decision. The court's been criticized, including just yesterday, in this hearing, for not deciding the Citizens United case on narrower statutory grounds. But according to some media accounts 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....

Now, that's where you come in. You re-argued the case last September. And I believe it was Justice Ginsburg who asked whether you still believed that the federal government may ban publication of certain books at certain times. You said that the statute in question covered books but that there might be some legal arguments against actually applying it to books. I certainly agree with you on that....

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? You did -- (inaudible)....

Senator Hatch, we were -- of course; I was defending the statute as it was written.

No, 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 kinds of classic electioneering materials -- not books, because they aren't typically used to electioneer -- but that the application of the statute to any kinds of classic electioneering materials was, in fact, constitutional, and that the court should defer to Congress's view of the need for --...

I accept that. I accept that you made that argument, and that you were arguing for statutory enactment by the -- by the Congress.

But as I mentioned, you said that the federal government could ban certain pamphlets at certain times, because pamphlets are, as you put it, quote, "pretty classic electioneering," unquote. You said that pamphleteering is classic political activity with deep historical roots in America. Certainly some of the most influential pieces of political speech in our nation's history have been pamphlets, such as Thomas Paine's "Common Sense." Since in the Citizen(s) United case you were defending application of the statute to a film, would you also consider films as classic electioneering?...

Senator Hatch, it -- trying to remember what our -- what our brief said -- but, yes. I think the way we argued the case --

You took that position.

-- it applies to films as well.

Okay.

Of course.

All right.

A pamphlet is often defined, at least in the dictionary, as an unbound printed work, usually with a paper cover or a short essay or treatise. In another First Amendment context involving the establishment clause, Justice Kennedy criticized the idea that application of the First Amendment defended on such things as the presence of a plastic reindeer or the relative placement of a poinsettia. And I believe he called that a "jurisprudence of minutiae." I thought it was an interesting comment myself....

Do you believe that the protection of the First Amendment should depend on such things as the stiffness of a cover, the presence of a binder or the number of words on a page? Now, you can give an opinion on that, since that case is decided....

Senator Hatch, I -- what we did in the Citizens United case was to defend the statute as it was written, which applies to all electioneering materials, with the single exception of books, which we told the court were not the kind of classic electioneering 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. Books -- you know, nobody uses books in order to campaign. But with respect --...

Well, that's not true -- that's not true. And you did say that books are probably covered but you didn't think they would --

I thought -- I said that we -- 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 corruption, would not easily have applied to books but would have applied to all thick materials that people typically use in campaigns....

I understand. I understand.

In 1998, when you served in the Clinton administration, the Federal Election Commission sued Steve Forbes and his company that publishes Forbes magazine. Now, I have a copy of the Forbes magazine right here, and I think most people are familiar with it....

Steve Forbes had taken a leave from his position with the company to run for president but continued writing columns on various issues. The FTC used the same statute that you defended in the Citizens United case to say that these columns were illegal corporate contributions to Forbes's presidential campaign. And I know that the FTC later decided to terminate the lawsuit, and I know that this Forbes lawsuit involved alleged campaign contributions rather than independent expenditures. But the same statute was involved. And I use this as an example to show what can happen on the slippery slope of the federal government regulating who may say what and when about the government....

Now, the Forbes case involved a magazine. The case you argued involved a movie. Your office admitted that the statute could apply to books and newsletters. 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 corporations, tiny S-chapter corporations or labor unions. Do you really believe -- now, this is your personal belief -- do you really believe -- I understand you represent 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 among speakers, except in highly unusual circumstances with hugely compelling interest....

Well, what's highly unusual about a book or a pamphlet or a movie?

Well, I -- Senator Hatch, I said putting Citizens United to the side.

Okay.

I argued that case; I argued it on behalf of the government because Congress had passed a statute. We argued that --

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 that the statute should be upheld....

Okay. Okay.

I want to make a clear distinction between my views as an advocate and any views that I might have as a judge. I do think Citizens United is settled law going forward. There's no question that it's precedent, that it's entitled to all of the weight that precedent usually gets. I also want to make clear that, in any of my cases as an advocate -- and this is Citizens United or any of the other cases in which I've argued -- you know, I'm approaching the things -- the cases as an advocate from a perspective of --...

Okay, I --

-- first, the United States government interests. 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. All I'm saying is that we've had arguments right here in this committee that this was a terrible case that upset 70 years of precedent. And I've heard all these arguments, and they're just inaccurate. And 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. Now, 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 corporations and campaign contributions by anyone are still in force today?...

Senator Hatch, this case did -- as you say, this -- this -- 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 trying to establish -- and it was a misstatement of the law. Now, I'm not here to beat up on President Obama. I just want to make this point. And yet colleagues have just accepted that like that's true. It isn't true....

In First National Bank of Boston versus Bellotti, the Supreme Court held in 1978, more than 30 years ago, that, quote, "The identity of the speaker is not decisive in determining whether speech is protected. Corporations and other associations, like individuals, contribute to the discussion, debate and the dissemination of information and ideas that the First Amendment seeks to foster," unquote....

Bellotti was decided just two years after the landmark case of Buckley versus Valeo. In Bellotti, the court recognized that corporations have a First Amendment right to engage in political speech. In that decision, Chief Justice Burger wrote an interesting concurrence in order to, as he put it, quote, "raise some questions likely to arise in the future," unquote. These questions included that large corporations would have an unfair advantage in the political process. He had some amazing insight there, I think, because some people -- because people are making just such arguments today....

That case also involved the First Amendment protection of the press, but Burger noted how the government historically has tried to limit what may be said about it. He concluded, quote, "In short, the First Amendment does not belong to any definable category or persons or entities. It belongs to all who exercise its freedoms," unquote. Do you agree with that?...

I'm sorry, Senator Hatch. What -- the --

Do you agree with Justice Burger's comment there?

Would you read that again? I'm sorry.

Sure, I'll be glad to. He said, in short, the First Amendment does not belong to any definable category or persons or entities; it belongs to all who exercise its freedoms....

Senator Hatch, it's -- the First Amendment protects all of us and grants all of us rights.

Right. And they're important rights. (Chuckles.)

In Citizens United -- see, I get a little tired of people on the left saying it was a terrible case, the wrong people decided, when, frankly -- let me make this point. In Citizens United, the court listed at 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.

Without objection.

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 had held that Congress may prohibit independent expenditures for political speech based on the identity of the speaker. In other words, Austin was the aberration, the exception, the break in the court's consistent pattern of precedents. And many folks have --...

Mr. Chairman, I'm going to need about 30 seconds more just to finish here. And then I think --

Thirty seconds more.

Okay.

Many folks have attacked the decision, saying it is a prime example of, quote, "conservative judicial activism," unquote, because it ignored precedent by overruling Austin. But by overruling that one precedent, wasn't the court really reaffirming a much larger group of previous decisions, including Bellotti, that, as we discussed, affirmed that corporations 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 -- I thank my chairman for allowing me to make that last comment. But I get a little tired of people misstating what Citizens United is all about....

Well, Senator Hatch, I think that --

And I've appreciated your comments here today.

Senator Hatch, I think that there was a significant issue in the case --

Yeah.

-- about whether Austin was an anomaly, as you called it, or whether it was consistent with prior precedent and -- and consistent with subsequent precedent as well. And certainly the government argued strenuously that Austin was not an anomaly, although the court disagreed and held that it was....

The court was right.

Senator Feinstein is recognized. And then after that round of questioning, we'll take a short break.

Senator Feinstein.

SEN. DIANNE FEINSTEIN (D-CA): Thank you very much, Mr. Chairman.

I just want to clear up one thing before I go on. It's my understanding that you specifically told the Supreme Court that books have never been banned under federal campaign finance laws and likely could not be. And I believe, if -- here's a quote. "Nobody in Congress, nobody in the administrative apparatus has ever suggested that books pose any kind of corruption problem." Is that not correct?...

Yes, that's exactly right, Senator Feinstein.

So that it's clear to me that the campaign finance laws invalidated by the Supreme Court in Citizens United were intended to prevent corporations from spending limitless dollars to elect candidates to do their bidding, not to prevent authors from publishing their books...

We said that the act ought not to be applied, it had never been applied, to books, we thought it never would be applied to books, and to the extent that anybody ever tries to apply it to books, what I argued in the court was that there would be a good constitutional challenge to that because the corrupting potential of books is different from the corrupting potential of the more typical kinds of independent expenditures....

Thank you very much.

Now I want to just have a little heart-to-heart talk with you, if I might. I come at the subject --

Just you and me. (Laughter.)

Just you and me and nobody else. (Laughter.)

Don't anybody in the room listen. (Laughter.)

I come at the subject of guns probably differently than most of my colleagues. I think I've seen too much. You know, I wrote the assault weapons legislation. I found the body of Harvey Milk. I became mayor as a product of assassination....

I've watched as innocent after innocent has been killed. The latest of which in my state is, two weeks ago a 6-year-old in a Spider Man costume, eating an ice cream bar in the kitchen, was killed by a bullet coming through the room. I can show you in Los Angeles where a woman ironing -- killed the same way. A youngster playing the piano killed the same way, bullet right through the walls -- is a paraplegic today....

Now, you answered Senator Leahy's question that you believe that both Heller and McDonald are binding precedent and entitled to all respect to binding precedent in any case. That is settled law, you said. Okay....

This is a 5-to-4, closely decided, decision in both cases. California is not Vermont. California's a big state with roiling cities. It's the gang capital of America. The state has tried to legislate in the arena....

As I understand McDonald, it's going to subject virtually every law that a state passes in this regard to a legal test. And that causes me concern because states are different. Rural states have different problems than large metropolitan states do. I mean, we probably have as many as 30 million people living in cities where the issue of gangs is a huge question....

So here's my question to you. Why is a 5-to-4 decision in two quick cases -- why does it throw out literally decades of precedent in the Heller case, in your mind? Why does it -- why do these two cases become settled law?...

Senator Feinstein, because the court decided them as they did. And once the court has decided a case, it is binding precedent.

Now, there are various reasons for why you might overturn a precedent: if the precedent is -- has proved -- proves unworkable over time, or if the doctrinal foundations of the precedent are eroded, or if the factual circumstances that were critical to why the precedent -- to the original decision, if those change. But unless one can sort of point to one of those reasons for reversing a precedent, the operating presumption of our legal system is that a judge respects precedent....

And I think that that's an enormously important principle of the legal system, that one defers to prior justices or prior judges who have decided something; and that it's not enough, even if you think something is wrong, to say, oh, well, that decision was wrong, they got it wrong; that the whole idea of precedent is, is that's not enough, to say that a precedent is wrong....

You just -- you assume that it's -- that it's right and that it's valid going forward.

Okay. Let's go to the 1973 case of Roe v. Wade; the 1992 case of Planned Parenthood versus Casey; the 2000 case of Stenberg v. Carhart. In those cases, the Supreme Court clearly stated, and I quote, "subject to viability, the state, in promoting its interest in the potentiality of human life, may, if it chooses, regulate and even proscribe abortion except where it is necessary in appropriate medical judgment for the preservation of the life or health of the mother."...

That's 30 years of case law. But in the 2007 case of Carhart v. Gonzales (sic/Gonzales v. Carhart), the court issued a 5 to 4 decision upholding a statute that did not contain an exception to protect the health of the mother for the first time since Roe was passed in 1973....

So let me ask you clearly. In a memo that you wrote in 1997, you advised President Clinton to support two amendments to a late-stage abortion bill to ensure that the health of the mother would be protected....

Here's the question. Do you believe the Constitution requires that the health of the mother be protected in any statute restricting access to abortion?

Senator Feinstein, I do think that the continuing holding of Roe and Doe versus Bolton is that women's life and women's health have to be protected with -- in abortion regulation. Now, the Gonzales case said that with respect to a particular procedure, there was -- that the statute Congress passed, which passed the statute without a health exception and with only a life exception, was appropriate because of the large degree of medical uncertainty involved --...

Because of the procedure.

-- because of the procedure.

Mm hmm.

But with respect to abortion generally, putting that procedure aside, I think that the continuing holdings of the court are that the woman's life and that the woman's health must be protected in any abortion regulation....

Thank you very much.

Let me move on to executive power, if I might. Some on the left have criticized your views on executive power, finding fault with your testimony during your 2009 confirmation hearing as solicitor general in which you agreed with Senator Lindsey Graham that the law of armed conflict provides sufficient legal authority for the president to detain individuals suspected of terrorist ties without trial....

You also agreed that the courts have a role in determining whether a particular detention is lawful, and that substantive due process is required before an individual may be detained. You agreed during the aforementioned hearing that an individual suspected of financing al Qaeda in the Philippines was, quote, "part of the battlefield," end quote, for the purpose of capture and detention....

Could you elaborate on the scope of the president's authority to detain individuals under the law of armed conflict?

Senator Feinstein, the conversation that Senator Graham and I had -- and I believe in that same hearing, you asked a similar question -- starts with the Hamdi case, where the Supreme Court said that the AUMF, the Authorization for the Use of Military Force, which is the statute that applies to our conflict with Iraq and Afghanistan, that the AUMF includes detention authority. Detention authority -- and Hamdi said that the law of war typically grants such authority in a wartime situation, and interpreted the AUMF consistent with that law of war understanding....

Now, the question of exactly what the scope of that detention authority is has been and continues to be the subject of a number of cases. And in the role of solicitor general, I've participated in some of those issues....

The Obama administration has a definition of enemy belligerents that it believes are subject to detention under the AUMF and as approved by Hamdi, and the Solicitor General's Office has used that definition of an enemy belligerent, which is a person who is part of or substantially supports the al Qaeda and Taliban forces. And that's the definition that the Solicitor General's Office has advocated, as has the rest of the Justice Department....

Now there are a number of uncertain questions in this area that almost surely will come before the Supreme Court -- questions about whether the scope of the definition that the Obama administration has been using is appropriate, whether it's too broad, whether it's too narrow; where the battlefield is; what counts as -- you know, do you have to be a member of a fighting force, or is it sufficient that you support the fighting force, and if so, what kind of support might give rise to detention?...

So all of those questions are, I think, questions that might come before the court in the future. The Obama administration has taken views as to some of them, not all of them, in cases that have been litigated over the past couple of years. But there are certainly quite a number of questions that will come before the court about the exact scope of detention authority....

So if I understand you correctly, you would say that the executive's power in this area is really limited by the specifics of the actual situation, if I understand what you're saying --...

Well, Senator Feinstein --

-- and that the president does not have an overriding authority here.

Senator Feinstein, the way that the Solicitor General's Office has argued these cases, and the entire Department of Justice has, is on the basis of statutory authority, is on the basis of the AUMF, the Authorization for the Use of Military Force. And we have actually never argued that Article II alone would provide such authority....

And the question you raised really -- the usual framework that people use when they think about this question is something called Youngstown, to frame -- of course Justice Jackson's opinion in Youngstown, and he sets forth three different zones. He says: Well, in one zone, the president can act in accordance with congressional authority. And that is the easiest for a court to validate, to say: Look, Congress and the president are acting together. The president is acting in specific accordance with what Congress has told the president to do. The courts should give real deference to that....

But let me stop you here, because it's the three-pronged test. And we've discussed this in almost every Supreme Court confirmation hearing now. The concern is where there isn't legislation, and -- or when the third prong, when legislation may say the opposite, can the president exceed that legislation? And how strong is his authority? You say it's not the commander in chief authority; it's the AMU -- AUMF authority that prevails. Do I understand that correctly?...

Yes, essentially what the Solicitor General's Office and the Department of Justice has been arguing in these last two years is that we're in zone one, which is where the executive is acting with Congress's authorization, rather than in zone two, where the executive is acting and Congress hasn't said anything, or zone three, where the executive is acting as against Congress's statement to the contrary....

So those would present very different issues. Whether the president has authority to detain where Congress has not said anything, or, still yet, whether the president has the authority to detain where Congress has specifically deprived him of that authority, that would be a very different question indeed....

Okay, let's talk about that for a moment, because that's something I had something to do with. And that is expanding the exclusivity portion of the Foreign Intelligence Surveillance Act to say that the executive authority may not exceed, in statu, the confines of this act. Would you find that as binding?...

Well, Senator Feinstein, I would have to, you know, take a look at the statute and -- but I would say that the circumstances in which the president can act as against specific congressional legislation -- where the president can act despite Congress -- are few and far between. And I think that that's what Justice Jackson said in Youngstown, and I think that that's what, mostly, the court has agreed with. Few and far between....

Now, are they nonexistent? Well, suppose Congress said something like, "We're going to take away the president's pardon power," a power that's specifically committed to the president by Article II. I think that that would be a hard case. I think the court might say, "Well, you know, notwithstanding that Congress tried to do that, Congress can't do that. The president has that power, and it doesn't matter what Congress says about the matter." But those are very few and far between....

For the most part, the presumption is that the president, if told by Congress that he can't do something, can't do something.

Okay, let me ask this. Does the president, in your view, have the authority to detain American citizens without criminal trial, if they are suspected of conspiring to aid terrorists or participating in acts of terrorism? Now, does your answer then depend on whether the individual is arrested in the United States or abroad, because there's --...

Well, Senator Feinstein, I -- the -- this will, I think, very much be a case that may come before the court, is the question of how detention authority, whether detention authority, exists with respect to people who are apprehended in the United States. The court has not addressed that question so far. The court has addressed in Hamdi only a person who was actually captured on the battlefield. The court has left open the question of whether detention authority might exist for a person captured outside of the battlefield but outside of the United States; and also, has left open the question of whether detention authority -- under the AUMF, now, I'm talking about -- would exist as to a person captured in the United States....

There is a --

Yes.

There is a 4th Circuit decision on that subject. It's a -- it's the Al-Marri case, where the court was very closely divided, where a slim majority of the court stated that the court -- that the -- that there was detention authority under the AUMF to detain a person in military custody captured in the United States. That case was on its way to the Supreme Court, but never got there. It was mooted out, because the person was transferred into civilian custody -- excuse me, into the regular criminal-justice system. So that case did not come before the court, in Al-Marri, but it's very much a live possibility....

Right. And we have just had a case, it came -- by a district court judge in California, as of March 31st of this year, the Al-Haramain case. And Senator Specter and I have discussed this. I mean, it's my understanding that what the judge did here was find the terrorist surveillance program illegal and essentially say that the plaintiff was entitled to damages from the government. So I guess the question might be whether that case goes up to the Supreme Court or not. But clearly, the judge here dealt with something that was outside of the scope of law, which was the terrorist surveillance program, and made a finding that it was in fact illegal....

I believe that that is what the judge said in that case. And that case is still pending, of course, and might come before the court. I think that the appropriate analysis to use with respect to that case, or many others in this area, would be the Youngstown analysis, which makes very important what Congress has done. Where Congress authorizes the president, it's one thing; where Congress has said nothing, still another. Where Congress has specifically barred the activity in question, you're talking about a much, much higher bar for the president to jump over in order for the action to be found constitutional....

Thank you very much.

If I might, let me go on to an environmental issue in the Commerce Clause. And as we all know, the Commerce Clause is used to legislate many different matters....

I think the Lopez decision struck all of us very hard. That was a decision where the court held that it was a violation of the Commerce Clause to restrict guns within so many feet of a school....

In 1972, the Congress passed the Clean Water Act to "restore and maintain the chemical, physical and biological integrity of the nation's waters." That's a quote....

The act prohibited the discharge of any pollutant into navigable waters without a permit issued by the Army Corps of Engineers or the EPA. And for over 30 years, the court and Congress gave these entities broad discretion to regulate water supply....

In a 5-to-4 ruling in 2006, the court reversed course and said that the Army Corps had exceeded statutory authority in limiting pollutants in certain wetlands. In California, these decisions have left seasonal streams unprotected by the Clean Water Act, opening them up to development, prone to flooding that were formerly protected areas....

Further the ambiguity left by the court's decision has left EPA and the Army Corps with little clarity on the bounds of their jurisdiction under the act, leading to agency expenditures on establishing and defending their jurisdiction, rather than on enforcement. Here's the question....

When do you believe it is appropriate for a court to overturn the reasoned decision of a federal agency that action is needed pursuant to a statute?

Senator Feinstein, I don't know the case that you mention at all.

But I think what -- the typical approach of a court obviously when it interprets a statute, and this is very important, is to figure out what Congress meant when it enacted that statute; that a court's -- a court acts outside its proper boundary in trying to impose its own meaning on a statute or to improve on the meaning that Congress gave to the statute. But instead, you know, the legislative power is Congress's. And what the court is supposed to do is to figure out what Congress meant....

Now, sometimes that's not so easy, because sometimes language is imprecise. New circumstances develop. It's unclear how Congress intended for a statute to apply. Or sometimes Congresses even just -- they make a mistake, they're careless, whatever. Sometimes you do that, right?...

But so sometimes there's some lack of clarity, some ambiguity in a statute. And there the appropriate course, the court -- the course that the court has chosen, and I've written about this in my scholarly work, is to give deference to the agency....

And the idea of the law in this area, it's called the Chevron doctrine -- the idea of the law is that Congress in enacting a statute and in giving authority to the agency, to implement that statute, has impliedly delegated power to the agency, to clarify any ambiguities that might arise in that statute, and that it's more appropriate for an agency to clarify those ambiguities than it is for a court to do so....

And that's why Chevron says the courts are to give deference to the agency. And I have written about this a good deal. My field is administrative law. And I've written about the Chevron doctrine....

It's an important doctrine, for the reason I just said, that when there -- when there are ambiguities in a statute, when it's unclear how a statute should apply to a particular kind of administrative action, one possibility is that the court gets to decide that. The other possibility is that the administrative agency gets to decide that....

The court says in Chevron, it's better for the agency to do so, because the agency has more competence in the area, it has more expertise in the area, because the agency has some political accountability, which courts do not have, and also because we think that Congress would have made that choice, that Congress would have wanted the entity with political accountability and with expertise to make the decision, rather than the courts. And in that sense, Chevron is actually a great example of courts saying that the court's own role should be limited. It should be limited -- there it's with respect to an administrative agency that really has expertise and that has political accountability....

Thank you. That's very helpful.

Let me ask a quick question in my remaining time on standing. With many environmental statutes, such as the Clean Water Act, the Endangered Species Act, the Clean Air Act, Congress has included provisions permitting citizens or citizen groups to bring lawsuits to redress violations of the law. When regulatory agencies fail to do their jobs for any reason, be it incompetence, corruption, political interference, lack of resources, citizen suits provide a means for private citizens to step forward and ensure that our nation's environmental protections are not ignored. In a series of cases, it's been argued, however, that citizens do not have constitutional standing to bring these cases because they cannot prove that they have been personally and concretely harmed by global warming, the pollution of waterways, or the depletion of species....

So here's the question. Do you believe it's possible for citizens to demonstrate that environmental harms have injured them for constitutional purposes?

Senator Feinstein, the answer is yes, depending on -- much depending on what Congress does. So let me step back for a minute.

Article III has what's called a case of controversy requirement. And this is a very important aspect of the judicial system; it's really the -- one of the things that keep judges judging and not doing anything else, which is that they can only decide concrete cases of controversies. They can't make pronouncements on issues, legal or otherwise. They can't issue advisory opinions. They can only decide cases of controversies....

And one important aspect of what it means to be a case of controversy is that a person has standing to bring that case. And there are usually considered to be three requirements for that standing. First, a person has to have suffered an injury. Second, the person has to show that that injury was caused by the action that she's complaining about. And third, the person has to show that the relief that the person is seeking from the court will actually redress the injury. And all of those are important. They're all actually constitutional requirements....

Now, that injury can be of many different kinds. It can be economic injury, but it can also be a kind of -- an injury that you get when the environment is degraded and you can't use the parks in the way you would have wanted to use the parks....

Like asthma in L.A. from ozone.

It can -- the injury can be of a kind like that, certainly.

Now, the court has said that people have to have -- be able to show that that person specifically has been injured, and that there's some sort of specificity and concreteness requirement that the court has used in the standing question. But the court has also made clear that Congress can define within broad limits a -- a set of people who Congress believes has -- is injured by a particular practice such that they can bring suit....

So the standing question is one that I think is not entirely, but to a great extent within Congress' control; that Congress can say, look, there are, you know, some set of people, and it gets to define those people as it wants, who are injured by some kind of action and who should have an entitlement to go to court to redress that action....

In legislation. In other words --

That's right. That -- that Congress does that in legislation. And if Congress does do that in legislation -- within broad limits, as I say -- but if Congress does, the court should respect that and should hold that such a suit -- such a suit complies with Article III....

Thank you very much.

Thank you, Mr. Chairman.

Well, thank you very much, Senator Feinstein.

We will take a short break, about 10 minutes, and then come back. Again, I appreciate senators on both sides staying within their allotted time.

We will have one change. Normally we'd go to Senator Grassley, but because of a conflict in scheduling, he's going to switch. We'll go to Senator Kyl when we come back in. That's with the concurrence of both the senators....

Stand in recess. (Sounds gavel.)

(Recess.)

Thank you all.

Again, back to the schedule. We'll go to Senator Kyl, and then we'll go to Senator Feingold, and then we'll break for lunch and come back. Emerging senators will be next in line after that, to vote at the desk on that 2:15 vote and come back here. That's what I intend to do. And I will then recognize whoever is next in line, so we can go....

Senator Kyl.

SEN. JON KYL (R-AZ): Thank you.

General Kagan, you can see how important my colleagues think my questions are here.

(Laughs.) I'm here.

(Laughs.) Or how important my answers. (Laughter.)

(Laughs.) Well -- when we -- when we met, I tried to give you an idea of the questions that I would ask. And I think I can pretty much follow what I laid out to you, so let me do that. I also think most of my questions can be answered pretty succinctly, and I would appreciate if you could do that....

So let me start by asking you the standard for judges in approaching cases that we talked about, starting with the president's idea. I'll remind you. He's used a couple of different analogies -- one was to a 26th-mile marathon -- and said that in hard cases, adherence to precedent and rules of construction and interpretation will only get you through the first 25 miles. And he has said that while the law is sufficient to decide 95 percent of cases, in the last 5 percent, legal process alone will not lead you to the rule of decision. He says the critical ingredient in those cases is supplied by what is in the judge's heart, or the depth and breadth of a judge's empathy....

My first question is, do you agree with him that the law only takes you the first 25 miles of the marathon, and that the last mile has to be decided by what's in the judge's heart?...

Senator Kyl, I think it's law all the way down. It's -- when a case comes before the court, parties come before the court, the question is not do you like this party or do you like that party, do you favor this cause or do you favor that cause. The question is -- and this is true of constitutional law, it's true of statutory law -- the question is what the law requires....

Now, there are cases in which it is difficult to determine what the law requires. Judging is not a robotic or automatic enterprise, especially on the cases that get to the Supreme Court. A lot of them are very difficult. And people can disagree about how the constitutional text or precedent -- how they apply to a case. But it's law all the way down, regardless....

In the time of sentencing, a trial court might be able to invoke some empathy, but I can't think of any other situation where, at least off the top of my head, it would be appropriate. Can you?...

Senator Kyl, I don't know what was in the -- I don't want to speak for the president. I don't know what the president was speaking about specifically.

I do think that in approaching any case, a judge is required, really -- not only permitted, but required -- to think very hard about what each party is saying, to try to see that case from each party's eyes, in some sense to think about the case in the best light for each party and then to weigh those against each other. So I think that the judge is required to give consideration to each party, to try to figure out what the case looks like from that party's point of view. And that's an important thing for a judge to do....

But at the end of the day what the judge does is to apply the law. And as I said, it might be hard sometimes to figure out what the law requires in any given case, but it's law all the way down....

Statutory, Constitution, (the law ?), precedent.

That's correct.

Now, when the president announced the retirement of Justice Stevens, he said judges -- this is a slightly different formulation, so the next question has to do with the second way that he formulated it. He said judges should have a keen understanding of how the law affects the daily lives of the American people, and know that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens, was the way he put it....

Now, the media outlets have summarized this and called it the fight- for-the-little-guy sensibility. I'm not sure that's exactly the way the president would put it. But you heard some of my colleagues here yesterday lament the alleged activism of the current court in supposedly always ruling for the corporate interests or the interests of big business....

Do you agree with the president and my colleagues that judges should take into account whether a particular party is a big guy or a little guy when approaching a question of law, or that one side is powerful or that one side is a corporation?...

Well, here's what I think. I think that courts have to be level playing fields and that everybody has to have an opportunity to go before the court, to state his case and to get equal justice. And one of the glorious things about courts is that they do provide that level playing field in all circumstances, in all cases, and even when that level playing field is not provided by other branches of government -- (word inaudible); that the obligation of courts is to provide that level playing field, to make sure that every single person gets the opportunity to come before the court, gets the opportunity to make his best case, and gets a fair shake, as --...

Now may I just -- when you say level, to ensure a level playing field, you're not saying that if the parties come to court with positions that are unequal -- that is to say, one party's position is better than the other party's position -- that the Court's obligation is to try to somehow make those two positions the same....

No, no, no.

And --

I mean, it's just a matter of everybody is entitled to have his claim heard. Everybody is entitled to fair consideration. It doesn't matter whether you're an individual, or you're a corporation or you're the government. I mean one of the really remarkable things about watching, actually, a Supreme Court argument is sometimes I go up there and I'm arguing for the government, very sort of -- I mean, you would think it's kind of a favored position to be arguing for the government, and it turns out it's not. It turns out that the justices give you as the government's representative just as hard a time, maybe a harder time than they give anybody else. And that's the way it should be, that whether you're the government, whether you're a corporation, whether you're a person, no matter what kind of person you are, no matter what your wealth, no matter what your power, that you get equal treatment from the court....

And what I meant by equal treatment is just that the court takes your claim seriously, takes your case seriously, listens to you as hard as it listens to anybody else and then makes the right decision on the law....

During his confirmation hearing, Chief Justice Roberts said if the Constitution says -- this was in response to a question, by the way, and he said, "If the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well then, the big guy is going to win because my obligation is to the Constitution. That's the oath."...

Do you agree with Chief Justice Roberts?

I do, Senator Kyl.

Now, one of the things that I brought up in my opening statement was, obviously, your clerkship for Justice Marshall and my belief that Justice Marshall's views are more along the line of viewpoint that President Obama expressed. And you wrote about this on more than -- in more than one way, and let me just cite one thing you wrote about Justice Marshall's view, and I'm quoting now. You said, "In Justice Marshall's view, constitutional interpretation demanded above all else that the courts show a special solicitude for the despised and disadvantaged. It was the role of the courts in interpreting the Constitution to protect the people who went unprotected by every other organ of government, to safeguard the interests of people who had no other champion. The court existed primarily to fulfill this mission," you wrote about Justice Marshall....

And, in fact, you also wrote that if he had his way, cases involving the disadvantaged would have been the only cases the Supreme Court heard.

What's unclear to me is whether you agree with Justice Marshall's view of the role of the Court in constitutional interpretation.

Senator Kyl, the last statement you read, the statement about it would be the only case, I think that that was kind of a jokey statement, so I would put that aside....

Okay.

I think what I was saying in that piece is consistent with what I've said to you. I think Justice Marshall's whole life -- and this is why I said he revered the Supreme Court. Justice Marshall's whole life was about seeing the courts take seriously claims that were not taken seriously anyplace else. So in his struggle for racial justice, you know, he could go to the state houses or he could go to Congress or the president and those claims generally were ignored....

Well, let me just interrupt for a second. You wrote here that in constitutional interpretations -- so this is not just a factual matter between two parties; we're talking about interpreting the Constitution. He says the courts should show a special solicitude....

But I think that was my words, and I meant --

Yes. Correct.

I meant special as compared with the other branches of government; in other words, that it was the court's role to make sure that even when people have no place else to go that they can come to the courts and the courts will hear their claims fairly. And that was what I was saying was a wonderful thing about courts, a miraculous thing about courts: that you can be ignored in every other part of the government and you can come to a court and a court will say, it's our job to treat you with respect, with consideration, with the same kind of attention that we give to everybody else....

Well, let me just ask you, do you believe then -- and it's hard, I realize, though you certainly knew Justice Marshall very well, you knew his reasoning -- that he would have agreed with Justice Roberts that if the big guy has the law on his side, the big guy wins; if the little guy does, then the little guy wins. And that's consistent with the -- with what Justice Marshall believed?...

Or would he have expressed it more along the lines that some of my colleagues have here, that there's too much agreement with the corporate interests and big business, as one of my colleagues put it?...

Senator Kyl, I guess two points. The first is, I guess I don't want to spend a whole lot of time trying to figure out exactly what Justice Marshall would have said with respect to any question, because the most important thing -- I love Justice Marshall; he did an enormous amount for me -- but if you confirm me to this position, you'll get Justice Kagan. You won't get Justice Marshall --...

Well -- and --

-- and that's an important thing.

Yes. And I totally agree with you. It's not what Justice Marshall believed that's important here. It's what you believe.

But what -- since you have written so glowingly about him -- you called, in fact, his vision of the court a thing of glory, I believe -- I'm having a hard time figuring out whether, to the extent that you do -- and you have written glowingly about him -- whether you would tend to judge in cases more actively or more with interest in protecting the rights of those who are disadvantaged, for example, or, as you have already expressed here, you would simply base it on the facts and the law and the Constitution....

The thing of glory, Senator Kyl, is that the courts are open to all people and will listen respectfully and with attention to all claims. And at that point, the decision is what the law requires. And there may be differences as to what the law does require, but it's what the law requires. And that's what's -- what matters....

I guess I would like to go back to -- I'll just give you one case, just to make sure that --

Well, could I just keep moving on? I know the time -- well, don't have a lot of time. If I could, please, do you agree with the characterization by some of my colleagues that the current court is too activist in supporting the position of corporations and big business?...

Senator Kyl, I would not want to characterize the current court in any way. I hope one day to join it. (Scattered laughter.)

(Chuckles.) And they said -- and they said you're not political, right? (Chuckles.) I appreciate it.

I -- let me explore your judicial philosophy just a little bit more here. Whether you agree with the comment that Justice Marshall said -- he said, "You do what you think is right and then let the law catch up" -- do you agree that that's the right way to approach judging?...

The way I would judge is the way I told you: that you make sure that you give very respectful consideration to every person and then determine what you think the Constitution or a statute, if the case is a statutory case, requires....

So you wouldn't have phrased your philosophy as Justice Marshall phrased his?

You know, I actually never heard Justice Marshall say that. I know another co-clerk -- another clerk, in a different year, wrote that she did.

I will say it -- Justice Marshall was a man who spent many decades of his life fighting for the eradication of Jim Crow segregation, and you can kind of see why he thought that you should work as hard as you can --...

He worked outside the box.

-- and eventually the law will catch up.

Yeah. He --

And eventually the law did catch up, in Brown versus Board of Education, and that was a great thing.

That's right -- that's why it didn't seem to me to be out of character for him to have said that.

Is there anything that you've written -- obviously you haven't rendered decisions, which would enable us to verify that this is your approach to judging. Can you think of anything you've written -- or if you'd like to just supply this for the record, if it doesn't come to you immediately -- that would verify what you have said for us here, that would help us to confirm that what you have expressed to us today is in a fact a view that you've expressed about judging?...

Well, I don't think I've written anything about judging in that way, but I think that you can look to my life, that you can look to the way I interact with people -- I mean, my deanship was a good example -- but the way I have acted as solicitor general as well, the kind of consideration that I've given to different arguments, the kind of fairness that I've shown in making decisions. I think that those would all be, you know, appropriate things to look to, to try to get some understanding of this aspect of me....

Okay. Let me ask you about some of the bench memos. I talked to you a little bit about that when you were in my office as well. And obviously we only have time to mention a few....

But what I was suggesting is that your advice to your boss seemed to be not just pragmatic but almost political, in advising him either to vote to take a case or not to take a case on cert....

For example, in Lanzaro versus Monmouth County, you wrote, and I quote, "Quite honestly I think that although all of the lower court's decisions is well intended, parts of it are ludicrous."...

But you discouraged Justice Marshall from voting to review the decision, because you were afraid that the court, and I'm quoting now, "might create some very bad law on abortion and/or prisoners' rights."...

Now, when deciding whether or not to take a case, shouldn't the focus be on whether the appellant or the appellee has the facts and the law on their side, rather than worrying about whether justices might in your view make bad law?...

Senator Kyl, let me step back just a little bit and talk about what clerks did for Justice Marshall.

We wrote -- Justice Marshall was not in what's called the cert pool. We wrote probably thousands of memos over the course of a year, about what cases the court should take and what cases the court should not take....

And when we -- when I was clerking for Justice Marshall, I was 27 years old. And Justice Marshall was an 80-year-old icon, a lion of the law. He had firm views. He had strong views. He knew what he thought about a great many legal questions. He had been a judge for some fair amount of time....

And the role of the clerks was pretty much to channel Justice Marshall, to try to figure out whether Justice Marshall would want to take a case, whether Justice Marshall would think that the case was an appropriate one for the courts to take and set aside....

And that's what I did. And I think that that's what my co-clerks did as well.

Well, do you think you would approach certain decisions that way if you were on the court?

I think that the most important factors in the cert decision process, which is I think one that I talked to Senator Kohl about maybe or the ones I gave first, most importantly are the question of circuit conflicts, that the court -- it's a very important responsibility of the court's to make sure that our law is uniform and to resolve any conflicts that appear among the circuit courts....

Second is, the court should be available almost all the time, where a judicial decision invalidates a congressional statute; that Congress is entitled to that kind of respect to have the Supreme Court hear the case before a congressional statute is invalidated....

Third, you know, for some set of extremely important national interests, extremely important for any number of reasons -- it's a small category of cases but it's an important one....

And I think that those would be the considerations that I would primarily use. And those would -- those would -- that is the way I would make decisions.

All right, there are -- some of these bench memos suggest other bases for making decisions.

For example, in Cooper versus Kotarski, in assessing whether the court should take the case, you wrote, quote, "It's even possible that the good guys might win on this issue."...

Now, that wouldn't be a very good basis on which to suggest taking a case, would it?

As I --

And who were the good guys?

As I took at look at that memo, Senator Kyl, I was -- that was just a reference to the people whom I thought Justice Marshall would favor on the law. And that's all the reference was meant to suggest, just the people whom I thought Justice Marshall would think had the better of the legal arguments....

Well, the reason I cited that one is, there's a note while you were at the White House. You were asked whether certain -- you asked a colleague rather whether certain organizations were on a list of organizations eligible for certain tax deductions. And you referred to two of them....

One was the NRA. The other was the KKK. And you referred to them as, quote, "bad-guy orgs," I presume an abbreviation for organizations. So if you're presented a case involving, for example, the NRA, would you consider the NRA to be a bad-guy org deserving of defeat in the case?...

Senator Kyl, I'm sure that that was not my reference. The notes that you're referring to are notes on a telephone call, basically me jotting down things that were said to me. And I don't remember that conversation at all. But just the way I write telephone notes is not to quote myself....

So but -- okay. So your belief is that you were quoting someone else when you wrote that -- those words?

Or paraphrasing somebody else, but it was not --

But those weren't your --

It was just telephone notes.

And it wasn't your terminology; it was somebody else's?

Or -- as I said, or a paraphrase. But it was -- it was -- you know, the way I write telephone notes is just to write down what I'm hearing.

You wouldn't, in any event, put the NRA in the same category as the KKK, I gather.

It would be a ludicrous comparison.

Thank you. In another case, in recommending the grant -- this is United States v. Kozminski -- in recommending the grant of cert, you noted that the solicitor general was, quote, "for once, on the side of the angels." Now, obviously, it's not whose side you're on that makes a difference --...

I hope that's not my good friend Charles Fried that I'm writing about. (Laughter.)

Indeed, it was -- it is. It is and was. (Laughter.) How do you define who's on the side of the angels?

(Laughs.) You -- you know, I didn't -- I have not seen that memo, Senator Kyl. But I'm sure it was -- it was the same -- essentially the same thing, which was the solicitor general had the better of the legal arguments, as Justice Marshall would understand the legal arguments....

For once, you said.

I'm sorry, Charles. (Laughter.)

(Laughs.) Well, have -- in your time as SG, have you made any litigation decisions based on an assessment of which position was the side of the angels?

I've tried very hard, Senator Kyl, to take the cases and to make the decisions that are in the interests of my client, which is the United States government.

And it wouldn't be appropriate as a member of the Supreme Court to decide cases based on that, either?

Senator Kyl, the -- a Supreme Court justice needs to decide cases on his or her best understanding of the law.

Let me ask you in the minutes that remain here about one of the decisions that you made in connection with a request by the court for the SG's opinion. The case is Chamber of Commerce v. Candelaria. This is an Arizona decision. You'll recall it involved a 2006 law that then-Governor of Arizona Janet Napolitano had signed and -- which requires all employers doing business in Arizona to participate in the federal government's E-Verify system that verifies Social Security status, and also provides that employers who knowingly employ illegal aliens can be stripped of their business licenses....

Several groups challenged the Arizona law, saying it was preempted by federal immigration law, but the federal district court in Arizona and a unanimous 9th Circuit panel upheld the law. The opponents of the law asked the Supreme Court to take the case and strike down the Arizona law. And last November, the Supreme Court asked you, as solicitor general, for the government's views. Ultimately, you decided to ask the Supreme Court to take the case and strike down the employer sanctions that are critical to making the Arizona law work. You're -- you and I talked about this case, and you're familiar with it to discuss it?...

Yes.

You did not argue that the court should take it because there was a split in the circuits?

That's correct, Senator.

Or that there had been an unconstitutional application of the law in any way?

Senator Kyl, I think what we argued in the petition was that the Arizona statute -- or at least this part of it -- was preempted by Congress, and therefore that the decision below was wrong; and that the reason for the court to take the case was not only that it was wrong because the Arizona statute was statutorily preempted, but also because this was an important question. It's one of the category of cases where it's --...

Right, it's that third category you said a moment ago that --

The third category.

-- that there aren't very many, but where they are, they're important. And a moment ago --

That's right. A lot of the states are passing this -- these kinds of laws, and that guidance from the Supreme Court would be appropriate as to what makes the legislation --...

Well, but the Supreme Court isn't in the business of giving guidance, though; is it?

Well, I think for the Supreme Court to set down its view of what the federal statute preempts would be very helpful to state legislatures.

All right, but -- sure. But, I mean, the court turns down hundreds of cases, and I'm sure its ruling in each case would be helpful.

As I recorded your comment earlier this morning, in that third category, you said that it would have to be a strikingly significant issue for the court to take the case in that third category of an important federal question....

Senator Kyl, what we argued to the court in the Candelaria --

No, no, you just -- you said it should be a strikingly significant issue; did you not?

I -- I'm honestly not sure --

Okay. I got the quote accurately.

-- exactly which words I used. But if I might, Senator Kyl --

Go ahead.

What we argued to the court in Candelaria was that there was a federal statute in this case. I know that -- well, there was a federal statute in this case. Our best read of that federal statute was that it preempted the licensing provision of the Arizona law. That was our best understanding of what the federal statute did, and that because there's so much legislative activity in this -- in this area happening across this country right now, that for the Supreme Court to decide that question and to determine whether the federal statute preempted the state law was one of those moments where-- which would -- where the issue is of real significance across the country....

So you think that that made it strikingly significant.

I think that this is a significant issue, as -- and people I think on both sides agree that it is a significant issue, as to whether the federal statute prevents states from doing this. And it's -- this is, again, not a decision or a view as to whether these state statutes are good or bad. They might be very good. The only question is whether Congress has, by legislation --...

Right. Okay.

And here the legislation was in the immigration --

And here's what the federal law said. I mean, it does -- it says, this is an area for the federal government, but under the federal law, states are explicitly permitted to legislate in this area -- and I'm quoting the statute now -- "through licensing and similar laws." Through licensing and similar laws. And you argued in your brief that the state's revoking of a license didn't qualify for that explicit exception to federal preemption under the statute. Right?...

Senator Kyl, what we argued in the brief was that the Arizona law did not qualify under that exception, because what that exception was meant to talk about were sort of traditional licensing laws of the kind when, you know, you license a lawyer or you license a doctor or you license a chiropractor, but not a law that essentially imposes sanctions on any employer for hiring illegal aliens....

Well, but this was a statute that dealt with -- the federal statute deals with hiring people who are not qualified to be hired in the country, who are called illegal aliens. And it said that the federal government has the preemption in this area, except where states pass laws through -- or attempt to deal with the issue through licensing and similar laws....

So wasn't it inferred there that the court meant for states to be able to do exactly the kind of things that the state of Arizona did? It wasn't limited to licensing a professional; it was the denial of a license to someone who was violating the law....

Yes, we definitely took a different position, Senator Kyl. And the reason we did is this statue clearly would prevent a state from saying anybody who hires an undocumented or illegal alien would be fined $25. The statute clearly prevents the state from saying that, from imposing a penalty on an employer who hires an illegal alien....

That's --

And if the statute clearly prevents a state from imposing a penalty like that, then surely the statute also prevents a state from imposing a penalty which is the withdrawal of any ability to --...

Well, that's the argument that you make, but surely -- the federal government could impose a fine, but the federal government doesn't get into the licensing of businesses. That's a state activity. So I could argue just as easily -- and I'm sure the court will consider the argument -- that of course that's the kind of thing that states can do. And so just as the state could grant a license, it could also take a license away if a business violated the law....

We'll talk a little bit more about this, I guess, in the -- in the second round. But the reason that I raise this is that my guess is -- and I would ask you whether you agree -- that without the SG having taken the position that you did, that it's much less likely that the court would have taken the case. Would you agree with that?...

You know, I don't know that, Senator Kyl. Sometimes they listen to us and sometimes they don't. Sometimes we tell them in no uncertain terms, "This is a terrible case to take," and they take it anyway....

Well, the stats are 80 percent, so that's a pretty good percentage -- when you ask them to take a case and they do.

Oh --

Was this the case where the Supreme Court asked the solicitor general to file a brief?

Yes.

This is a case where the --

And it just -- excuse me.

And those -- the 80 percent statistic, I think, is the statistic when the government files its own cert petition. I think that we do much less well with the court when we -- when we just -- when we answer the court's requests for, you know, our advice on what --...

We'll -- when we have the next round, I'll have the exact statistic on that.

Senator, Senator --

I hope we do well. I hope we do.

I think you do very well.

Okay.

Okay.

Thank you.

Senator Feingold.

And then when Senator Feingold finishes, we will -- we will break. And I would reiterate to senators -- and, Senator Kyl, you're in the leadership; you probably know this -- but apparently the vote is at 2:15. I will vote at the desk and come back, and I will recognize the next person in line to be on the Republican side....

Senator Feingold.

SEN. FEINGOLD (D-WI): Thank you, Mr. Chairman. And thank you -- (off mike.)

I guess I'd like to start by picking up on your discussion with Senator Hatch about the Citizens United decision. Senator Hatch talked about a book with a single mention of a candidate and pamphlets designed by small S-chapter corporations. But of course, as you indicated already, what Congress addressed in the McCain-Feingold bill was TV and radio election advertising right before the election, paid out -- paid for out of the treasury funds of unions and corporations, both profit and nonprofit. So it was the Supreme Court that instead reached out and asked for re-argument and called into question a 100- year-old statute that prohibited corporations more generally from spending money on elections. I just want to clarify this. So let me ask you: Wasn't it highly unusual, if not unprecedented, for the court to do this?...

Senator Feingold, the United States government, in the case, did urge the court not to decide the case on the grounds that it did. And, you know, it's obviously unusual whenever the court reverses a precedent in this way. The court thought it had grounds to do so, but it is an unusual action, yes....

And wasn't it unusual how they got to the point where they could make that decision, based on the facts?

Senator Feingold -- (pause) --

It was unusual, wasn't it?

Senator Feingold, you know, certainly the case, as it came to the court, did not precisely address -- did not address the question that the court ended up deciding....

Thank you.

And the reason that many people, including the president and many members of the committee, were so outraged by the decision was not simply because the court reversed its 2003 decision, upholding the issue-ad provisions of the McCain-Feingold bill, but it also reached out to decide an issue that was not raised by the case at hand and overturned settled law dating back more than a century. Did it surprise you that the court's decision caused such an uproar?...

Oh, I don't -- I don't know, Senator Feingold. I'm not -- I'm not, you know, an expert in public reaction to things, and I don't think that the court should appropriately consider the public reaction in that -- in that sense....

Do you take note of a public reaction to Supreme Court decisions?

Senator Feingold, I read the same newspapers that everybody else does.

But you're not willing to comment on whether this was a greater reaction than in other --

I don't know, Senator Feingold.

All right.

Let me go to national security issues that you already discussed a bit with Senator Feinstein. I think it's safe to say that you agree that the Youngstown concurrence is the appropriate starting point for these types of questions having to do with whether a statute is something that can be overwritten....

Go back to your understanding of how to apply justice to Jackson's test; specifically, do you read it to allow for any circumstances where the president could authorize a violation of the criminal laws that Congress has passed?...

Where the president could authorize the violation of criminal laws that Congress has passed.

That Congress has passed.

Senator Feingold, I couldn't think of any circumstance offhand. I don't want to say categorically that there might never be one if something was very much at the core of presidential power under Article II. But it's -- it would be a highly, highly unusual circumstance....

Now, you used the phrase "few and far between." But when pressed about a circumstance where it could occur, the example you gave was not something out of Article II, what you -- or out of the commander-in-chief power. What you suggested was that, of course, there could be a situation where Congress passes a law that would violate, let's say, the explicit pardon power, which, of course, I concede. But do you know of any examples of where this could occur simply within the context of the commander-in-chief powers under Article II?...

Well, it's interesting, Senator Feingold, because I think I read someplace where you stated a hypothetical, which was suppose Congress made somebody else commander in chief and the president said, I'm going to ignore that and I'm going to continue to be commander in chief....

I don't know where I read that, but that you had said that it struck me as a good example of something where, you know, that's core commander in chief power....

But you know of no actual example in any court case where the Supreme Court has upheld a presidential assertion of this power in a way that would override a criminal statute? Is that correct?...

I do not know of any court case like that. That's correct.

Let me ask you a question I asked Justice Alito about. What is the proper role here of the judiciary in resolving a dispute over the president's power to disobey an expressed statutory prohibition?...

Well, I think that the court has an important role. I mean, the court generally, I think, has a very important role in policing constitutional boundaries. And that might be policing the boundaries when Congress or some other governmental actor violates somebody's individual rights in a way that's not permitted by the Constitution or it might be a case in which one branch impermissibly interferes with another branch or impermissibly infringes on the appropriate authority of another branch....

So there is some category of cases, of course, as between the political branches, that courts sort of have left to the political branches to work out themselves, and to the extent that the political branches can work their problems out by themselves, I think that that's generally considered and it's generally right to be considered a good thing. But there are some times when the court really does have to step in and police those boundaries and make sure that the president doesn't usurp the authority of Congress or vice versa....

In 2007, you gave a speech to Harvard Law School graduates about the rule of law and you talked about an infamous incident where Attorney General John Ashcroft was asked to authorize an illegal government program while hospitalized for an emergency operation, and he refused. And you told the graduates that they, too, would, quote, "face choices between disregarding or upholding the values embedded in the idea of the rule of law," unquote....

What prompted you to discuss this theme and this incident in that speech? And do you think that this incident holds lessons for Supreme Court justices as well?...

Senator Feingold, it was a speech I gave to the graduating class. When I speak to students and particularly when I speak to them in important moments in their life, like graduation, when they're really thinking about what careers they want to have in the law, you know, I try to tell them some things that will stick with them and be meaningful to them and some things that I think it's important for them to keep in mind as they start their careers. And the rule of law and adherence to the rule of law, there's no more important thing for any law school graduate to keep in the forefront of his or her mind than that....

And that was a speech where I thought that there were some current-day incidents, as well as I used some historical incidents to just talk about the rule of law, about how no person, however grand, however powerful is above the law, to talk about the importance of adhering to the law, no matter the temptations, no matter the pressures that one might be subject to in the course of one's career....