Deputy Director of the Center for Legal and Judicial Studies at The Heritage Foundation Robert Alt is scheduled to testify as a minority witness this Thursday before the Senate Judiciary Committee’s hearing on the nomination of Elena Kagan to be an Associate Justice of the Supreme Court of the United States. Throughout the hearings, he and his colleagues will be providing real-time updates here at The Foundry. This post will remain at the top of the page throughout. Please look below for other fresh perspectives on the day’s news and issues:
6:20 PM – Kagan as Solicitor General Would Have Banned Books and Pamphlets Senator Russ Feingold (D-WI) followed the liberal tactic of excoriating the current Supreme Court in order to divert attention from Kagan’s record. He tried to get Kagan to agree that the Court’s throwing out a ban on independent political expenditures by unions and corporations on First Amendment grounds is “highly unusual, if not unprecedented.”
What was in fact highly unusual was Elena Kagan and her deputy’s arguments before the Supreme Court in the Citizens United case when she was Solicitor General. They chillingly claimed that the government could ban books and pamphlets.
After some back and forth, Deputy Attorney General Stewart replied that the government theoretically could ban books under the law if their publication used corporate funds. The justices indicated their astonishment that the Office of the Solicitor General of the United States would say that the government could ban a book, and Justice Ruth Bader Ginsburg then asked Kagan questions regarding the same issue. Kagan admitted that the law in question applied to books – but she suggested that was okay because the Federal Election Commission had never exercised its authority under the law to ban books.
Chief Justice Roberts chided: “We don’t put our Firsts Amendment rights in the hands of FEC bureaucrats; and if you say that you are not going to apply [the law] to a book, what about a pamphlet?” (Thomas Paine’s Common Sense and James Madison and Alexander Hamilton’s Federalist Papers immediately leap to mind.) Kagan replied that a pamphlet could be banned: “I think a – a pamphlet would be different. A pamphlet is pretty classic electioneering, so there is no attempt to say that [the law] only applies to video and not to print.”
This is not just theoretical, the FEC came one vote away from bringing civil charges against George Soros under the law for a pamphlet promoting his book, The Bubble of American Supremacy, in which he argued against reelecting President George W. Bush. The three Democrats on the Commission voted to charge him, but Soros was spared by the three Republicans who voted against it.
For every liberal Senator who bashes the Court for protecting core First Amendment speech in the Citizens United decision, two Senators who believe in free speech should point out that Kagan and one of her deputies argued that they could use the unconstitutional provision to ban political books and pamphlets. (by Brian Walsh)
6:00 PM – Holder Could Learn from Kagan Attorney General Eric Holder could learn a lot from Elena Kagan, especially her understanding of the law of war as it relates to terrorism, the legal rights of unprivileged belligerents, and the open legal questions in this unorthodox yet deadly conflict.
In response to questions by Senator Lindsay Graham, the only military attorney on the Committee, Kagan quickly demonstrated a mastery of the unique legal status of this enemy, the direct applicability of the law of armed conflict, and the need for military detention, without charge, of enemy combatants.
Her statements, whether they reflect her personal views and/or the carefully-practiced responses to anticipated questions, demonstrate that she understands the nature of the threat, the law of war, the need for military detention and military commissions.
During an appearance before the Senate Judiciary Committee in November 2009, Attorney General Holder demonstrated that he had not adequately thought through the vexing legal issues surrounding the war against terrorists, as I argued here. One would have hoped that the Attorney General, on the job for almost a year, would have given thought to predictable questions and then practiced those answers before an appearance before the Senate Judiciary.
Indeed, when Senator Lindsay Graham asked Holder for any case in American history where an “enemy combatant, caught on the battlefield, got tried in federal court,” the Attorney General fumbled, and could not even articulate an answer. Graham, pleased to provide the answer, said “None. We’re making history.”
At least Kagan had articulate answers to all of Graham’s questions. But as we saw from the Sotomayor hearing and her seemingly reasonable answers to questions about the Second Amendment (followed by an unreasonable dissent in the McDonald gun case) and foreign law (followed by her joining of an opinion looking to foreign law to interpret whether the Eighth Amendment permits life without parole sentences for violent recidivist juvenile offenders), saying the right thing does not always mean that the nominee will do the right thing. (By Cully Stimson)
3:54 PM – Kagan’s Selective Enforcement of Federal Law
After her nomination for Solicitor General, Elena Kagan stated during her confirmation hearing that if she was confirmed, she would defend the laws of the United States even if she personally disagreed with them.
Her answer, if true, was the correct posture for any candidate for Solicitor General should take.
However, we now know that as Solicitor General she elected not to support certain federal laws when they were challenged before the United States Supreme Court.
For example, prior to the Court’s decision in Graham v. Florida, handed down this past May, the federal government, the District of Columbia, and 44 states authorized life without parole for juvenile killers (JLWOP). Indeed, the federal government, the District of Columbia, and 37 states authorized JLWOP for convicted violent teens in appropriate cases.
Yet when anti-incarceration activists challenged the constitutionality of JLWOP for two violent teens from Florida, Solicitor General Kagan refused to file a friend-of-the-court brief defending the constitutionality of JLWOP. The State of Florida asked Kagan’s Solicitor General’s Office to file a friend-of-the-court-brief and there were current federal inmates who were juveniles when they committed violent crimes, tried as adults, and sentenced to JWLOP. An adverse ruling by the Supreme Court (i.e., that JLWOP was unconstitutional) would directly affect those federal inmates.
As Court watchers know by now, the Supreme Court declared JLWOP for violent teens unconstitutional by a 5-4 vote. We’ll never know how the case would have turned out had the United States, represented by Solicitor General Kagan, decided to defend the federal statute, and states’ ability to enact commonsense sentencing schemes.
Senators should point out that Kagan’s Solicitor General office picked and chose which laws of the United States it wanted to defend and which it did not. Her office aggressively defended the federal law the Court struck down in Citizens United that, according to Kagan’s office, would allow the government to ban books and pamphlets. It chose not defend federal laws allowing the federal government to keep violent criminals in prison. Kagan should have to explain – in a clear and direct manner – why her office selectively enforced federal law. (By Cully Stimson)
3:20PM – A Political Lawyer Giving Highly Political Answers Liberal Senators have been quick to tout Elena Kagan as a superb legal mind with incomparable “real world experience.” While it is certainly refreshing to hear liberals on the Judiciary Committee accentuating the importance of practical legal knowledge and a diverse professional background, it is important to take note of where and how Kagan developed her primary functional experience – as a political lawyer.
In this role, Kagan has built a legal skill set grounded in partisan application of the law. As Associate White House Counsel and Deputy Assistant to the President for Domestic Policy, Kagan worked to implement the political and legal agenda of the Clinton Administration. In that capacity, she endeavored to apply and navigate existing law in a manner consistent with the partisan priorities of a liberal White House. Likewise, as Solicitor General, Kagan has worked to represent and advocate the legal interests of the Obama Administration before the U.S. Supreme Court.
Collectively, Kagan has spent the vast majority of her non-academic career serving as an attorney who navigates the American legal framework for political ends. It is therefore not surprising that the hearings have revealed her palpable left-leaning philosophy. From the language of her opening statement to her opaque responses to Senate questioning, Kagan has thus far proven to be predictably progressive. Further, her unwillingness to provide any direct answers to difficult questions about her judicial philosophy reveals a political approach even to the hearings themselves.
Kagan has provided clear signals to the public about what type of justice she would be – one driven by her instincts as a trained political lawyer. She appears to be a nominee who would shun interpretation that is based on the text of the law and Constitution, which she referred to derogatorily as a “robotic or automatic exercise.” Despite predictable disclaimers, she has not explained why she would not follow in the footsteps of her judicial heroes – liberal activists Justice Thurgood Marshall and Justice Aharon Barak of the Israeli Supreme Court.
In words and deeds, Elena Kagan appears to be who we thought she was… a partisan lawyer dedicated to progressive legal ideals. (by Ben Keane)
1:15 PM – What is a “Thing of Glory?” It may not be as viscerally shocking as the “wise Latina woman” quote, but if Kagan has a phrase that has caused her some difficulty, it is her praising as a “thing of glory” Justice Marshall’s vision of the Court,” which she characterized as demanding a special solicitude for the “despised and disadvantaged.” In response to a question from Senator Kyl, Kagan said that what she meant by that phrase was that it was a thing of glory that the Court was open to all parties, particularly those who weren’t able to get redress from other branches of government. But that reading is difficult to reconcile with what she actually said in the article, in which she stated: “And however much some recent Justices have sniped at that vision, it remains a thing of glory.”
To accept Kagan’s statement to Kyl, we would have to believe that justices were sniping about the Court being open to all parties. I don’t recall any justice sniping about parties claiming injury getting their day in court. But some justices did recoil from Marshall’s activist policies, such as those embodied by his infamous quote that “[y]ou do what you think is right and let the law catch up.”
It is Marshall’s quote that raises the real question for Kagan—does she embrace a view of empathy, or solicitude for the despised and disadvantaged, or what have you that says that your policy preferences are more important than the law.
12:14 PM – Leahy to the Rescue: Hatch’s First Amendment Questioning Senator Orrin Hatch (R-UT) was a dogged questioner as he tried to get Kagan simply to admit the basic facts of the Supreme Court’s recent Citizens United decision. President Obama – and Senate liberals reciting White House talking points – have routinely mischaracterized this opinion in the most disingenuous manner.
Most notably, Obama claimed in his January State of the Union address that Citizens United allows foreign corporations to make U.S. campaign contributions. That has been – and remains – expressly prohibited by federal law. (It would be far easier to take Obama seriously on this if he were to provide a full and open accounting of his own 2008 campaign contributions from foreign sources and promise not to take any foreign contributions in his 2012 campaign.)
He also asked Kagan to admit that the Citizens United decision did not authorize contributions by foreign contributions and that the campaign finance law it struck down applied even to the smallest companies, including grassroots organizations such as the Citizens United group that was prohibited from showing its movie about then-candidate Hillary Clinton.
For any honest lawyer who has read the Citizens United case, these are not controversial questions. Yet Kagan avoided a direct answer by engaging in circumlocution. She would not, for example, admit that Citizens United did nothing to authorize foreign corporations to make U.S. campaign contributions.
Because Hatch was cutting close to the bone (i.e., exposing the truth), Chairman Pat Leahy (D-VT) jumped in and interrupted Hatch before his time expired, then Leahy gave Kagan a chance to respond further, and then Leahy cut off Hatch as he tried to follow up and get a direct answer to his questions.
All Senators are entitled to direct answers to their questions as they fulfill their constitutional duty to fully vet Kagan’s record and beliefs. Leahy’s crass partisanship in cutting off effective lines of questioning should not be tolerated. (by Brian Walsh)
11:40 AM – McDonald and Boumediene Yesterday in McDonald v. City of Chicago, the Supreme Court extended its 2008 decision in District of Columbia v. Heller and made it clear that the Second Amendment protects the right to keep and bear arms in every state of the nation. Because of her admitted hostility to the Second Amendment and these two Supreme Court decisions, Sen. Diane Feinstein (D-CA) asked the following question to Kagan: “Why is a 5-4 decision in two quick cases [allowed] to throw out decades of precedent?”
Don’t hold your breath for a similar question from any Democrat on the Committee with respect to the Supreme Court’s Boumediene decision, a 5-4 decision which essentially threw out decades of precedent and gave, for the first time in modern history, enemy combatants, captured and held abroad, the constitutional right to challenge their detention via a writ of habeas corpus. (by Cully Stimson)
11:15 AM – “And, Ma’am, You’re No Justice Scalia” Senator Kohl asked Kagan whether her judicial philosophy will be more like Justice Scalia’s or Justice Souter’s. Kohl characterized Scalia as an “originalist,” who seeks to interpret the Constitution according to its original meaning – that is, according to the actual language of the Constitution. Kohl characterized Souter’s judicial philosophy as far more fluid, someone who believes the Constitution should be “interpreted” in changing ways to suit the times and circumstances (and the Justice’s personal policy preferences).
In trying to split the baby, Kagan demonstrated that she will be nothing like Scalia. She said she will look to a “variety of sources” to “interpret” the Constitution. Which sources she will look to and draw from, she said, will vary from case to case. Perhaps imagining she would sound prudent, Kagan instead betrayed that she is a legal pragmatist. Her answer is a good, informal definition of legal pragmatism.
(It is important to establish in questioning whether Kagan would ever include foreign law among those sources for interpreting the Constitution. In a letter to Senator Arlen Specter (D-PA), she previously stated that looking to foreign law is appropriate for judges in some cases, including when interpreting the Eighth Amendment.)
Legal pragmatists believe that the outcome is what matters. As Robert Alt just pointed out, Kagan stated in her Oxford thesis that judges should craft their decisions in order to “promote certain ethical values and achieve certain social ends.”
After having implemented their policy preferences, Justices who are legal pragmatists rely on a variety of sources to provide plausible cover for their willful acts of “judging.” As Kagan put it, “If . . . a court can justify a ruling in terms of legal principle, then that Court must make every effort to do so.” “If” a judge can justify her ruling based on law (“in terms of a legal principle”), only then must she try to do so?? This is an appalling admission of a legal pragmatist.
Legal pragmatists consider the idea that judges must be faithful to the text of the Constitution as written to be quaint or antiquated. Kagan made it plain that she will be no Scalia and will not consider herself bound in all cases by the actual text of the Constitution. (by Brian Walsh)
11:05 AM – Kagan and the Solomon Amendment Senator Sessions’ properly hammered Elena Kagan regarding her decision as Dean of Harvard Law School to discriminate against the military by not abiding by federal law requiring her to allow recruiters full and customary access to conduct on-campus recruiting. He calls Kagan’s decision to ban recruiters from campus “punishing” the military. The fact and record support his comment.
As the Dean of Harvard Law School, Dean Kagan repeatedly called Congress’s law requiring schools accepting federal funds to allow military recruiters on campus the “military policy.” During these all-important confirmation hearings, Senator Sessions would not allow that misstatement of fact, which Kagan made over and over as Harvard law’s dean, to stand. Kagan, clearly having prepped for this line of questioning, responded in an of-course-you’re-right tone, now admitting that the Solomon Amendment was indeed the law.
She immediately spoke about her concern that any law or policy comply with the Harvard Law School anti-discrimination policy. In other words, she placed the policy of a school above compliance with a congressional statute.
To make matters worse, she added that military recruiters had “full and good access” to potential recruits on campus, despite the fact that she refused to allow recruiters on campus to speak with potential recruits for some period of time. Senator Sessions, exasperated, stated that her comment was “unconnected to reality.”
Kagan attempted to rehabilitate herself by assuring the Judiciary Committee that military recruiters had access to Harvard Law School students “through the veteran’s association.” That comment was an attempt to put the best possible spin on her decision to restrict military recruitment at Harvard in direct violation of a congressional act, simply because she placed the school’s anti-discrimination policy over the act. (by Cully Stimson)
10:43 AM – The Witness Is Cutting Off Lines of Questioning In response to questioning from both Republicans and Democrats this morning, Solicitor General Kagan has already ruled out discussing and commenting on the judicial philosophies of sitting justices, past decisions by the Court, and her own political viewpoints. About the only law Kagan has so far confirmed can be discussed and read as written is the Constitution’s age requirement for becoming a U.S. Senator, which she actually admitted demands that a candidate be 30 years old in order to take office. (by Ben Keane)
10:35 AM – No Legal Basis for Separate and Unequal Kagan claimed in her response to questions from Senator Sessions that she thought that she had an obligation to return to Harvard’s prior policy of restricting access for military recruiters to Harvard’s career services office based upon the decision of the Third Circuit Court of Appeals. At best, she is being disingenuous; at worst, her answer betrays legal incompetence.
First, the Third Circuit decision had not taken effect—the mandate had not issued—when she reinstituted Harvard’s discriminatory policy. Second, the Third Circuit’s ruling was stayed pending Supreme Court review, preventing it from interfering with the operation of the Solomon Amendment. She knew that Harvard’s previous separate and unequal treatment of the military recruiters was deemed non-compliant by the DoD, which led her predecessor to reverse course and permit equal access in order to avoid loss of federal funds. Since there was no change in the law effectuated by the Third Circuit’s stayed decision, there was no basis to return to a position she knew to be non-compliant.
Third, even if the mandate had issued or the case had not been stayed, the Third Circuit decision did not even cover Harvard. The federal government generally applies non-acquiescence to lower court opinions which are adverse to federal laws and policies, which is to say, they treat the decisions as only binding in the district or circuit in which the decisions are issued. In this case, that would mean that the Third Circuit opinion, were it ever given legal effect (which it was not), would apply only to schools in the Third Circuit. But Harvard is in the First Circuit, a fact which the dean of Harvard law school undoubtedly knew.
Simply put, there was no duty for Dean Kagan to violate the law. She was still bound by the Solomon Amendment, but she used an inapplicable decision as an excuse to push her policy preferences. This use of non-binding law as cover is reminiscent of her Oxford thesis, in which she wrote that it is not “wrong or invalid” for judges to “mold and steer the law” in order to “promote certain ethical values and achieve certain social ends.” But she suggested that judges should give themselves cover in doing so: “No judge should hand down a decision that cannot plausibly be grounded in principles referable to an acceptable source of law. If, on the other hand, a court can justify a ruling in terms of legal principle, then that Court must make every effort to do so.”
And so, the military recruiting affair appears highly relevant to understanding how it is that Kagan approaches the law. It fits with a pattern dating back at least to her Oxford thesis of attempting to find legal window dressing to justify the imposition of policy preferences. (by Robert Alt)
10:20 AM – Kagan Obscures the Truth on Military Recruitment at Harvard In her responses to Ranking Member Jeff Sessions’ (R-AL) questioning on her refusal as dean of Harvard Law School to allow the military the ability to engage in full and customary on-campus recruitment, Dean Kagan obscured the point: Under her deanship, Harvard knowingly violated the law.
It makes no difference that the Veterans’ Office at Harvard did a “terrific job” of recruiting and getting the word out that they were recruiting. It makes no difference that she claims that she “respects, indeed reveres, the military.”
The point is that a woman who wants a lifetime position as a Justice of the Supreme Court of the United States, a woman who was the dean of the most prestigious law school in the nation, violated a federal law duly enacted by the U.S. Congress. The point is that all nine Supreme Court Justices – the “conservatives” and the “liberals” – affirmed that she was violating the law.
Kagan’s pattern and practice of obscuring the truth on this matter demonstrates how she will (continue to) approach cases if she were to be confirmed. Senator Sessions was right to call her on this obfuscation at the end of his questioning, and it is obvious why Chairman Leahy was so eager to cut him off: Sessions was exposing Kagan’s half-truths and other obscurantist tactics. (by Brian Walsh)
9:45 AM – Disingenuous Evasions When asked by Senator Sessions whether Kagan agreed with the assessment of some who know her well who referred to her as a “legal progressive,” she claimed that she didn’t know what that label means. Really? The former dean of Harvard law school can’t figure out what the term legal progressive means? Did someone mention vacuity and farce? Disingenuous non-answers like this explain why Americans make so many lawyer jokes. (by Robert Alt)