Video: Kagan hearings: Sessions has 'serious concerns'

  1. Closed captioning of: Kagan hearings: Sessions has 'serious concerns'

    >> thank you, mr. chairman. i would like to join you in recognizing the loss of senator byrd . he taught all the new senators something about the senate. he thought there were two great senates the roman senate , the american senate . he wanted ours to be the greatest ever. he gave a speech on friday morning which he complained about textbooks, the failure to distinguish between a republic and a democracy. he called them touchy, feely twaddle. he loved the constitution, he loved our country and loved clarity of thought. we will miss him. ms. kagan , let me join chairman leahy in welcoming you here today. this no, ma'am nagts is a proud day for you and your family and friends and rightfully so. i enjoyed very much our meeting a few weeks ago and appreciated talking with you. mr. chairman, thank you for your work. republicans are committed to conducting this hearing in a thoughtful and respectful manner. it is not a coronation but a confirmation process. serious and substantive questions will be asked. ms. kagan has numerous talents and many good qualities but there are serious concerns about the nomination. ms. kagan has less reel legal experience in any nominee in 50 years. it is not just the nominee has not been a judge. she has barely practiced law and not with the intensity and duration from which i think real legal understanding occurs. ms. kagan has never argued a case before a jury. she argued her first appellate case nine months ago. academia has value, there is no substitute of being in the harness of the law, handling real cases. ms. kagan 's public record reveals a more extensive background in policy, politics, mixed with law. ms. kagan 's college thesis on socialism in new york seems to bemoan socialism's demise there. she complained that the earl warren court could have done better justifying activism. president obama 's nominee stated she started as a staffer on the presidential campaign on michael dukakis . she worked for this committee under then chairman joe biden to help security the nomination of ruth bader ginsberg , one of the most active justices on the supreme court . i know you would join with me in the sympathy of justice ginsberg's loss of her husband. she worked in the clinton white house doing as she described it mostly policy work. policy is quite different than intense legal work. for example, in the office of legal counsel or some of the divisions in the department of justice . during her white house years the nominee was the central figure in the clinton/gore effort to restrict gun rights and as a dramatic 5-4 decision today in the mcdonald case shows the personal right of every american to own a gun hangs by a single vote on the supreme court . ms. kagan was the point person for the clinton administration 's effort to block restrictions on partial birth abortions. documents show she was the key person to convince president dloint change his mind from supporting to opposing legislation to ban that procedure. at dean of harvard ms. kagan reversed harvard's policy and kicked the military out of the office. her actions demeaned our soldiers as they were courageously fighting for our country in two wars overseas. someone who feels the burden of sending such young men and women into harm's way and redrafting legislation to ensure military recruiters were treated fairly on campus i can't take this issue lightly. ms. kagan joined with three law school deans to write a letter in opposition to senator graham's legislation to determining who was an enemy combatant in the war on terror . she compared this legislation to the fundamentally lawless actions of dictatorship. most recently the nominee served as solicitor general for little over a year, but her short tenure there has not been without controversy. in her first appellate argument ms. kagan told the court the speech and press guarantees in the first amendment would allow the federal government to ban the publication of pamphlets discussing political issues before an election. i would remind my colleagues that the american revolution was in no small part spurred by pam plets, thomas payne 's common sense, now the government has the power to suppress that speech is breathtaking. she approved a filing of a brief to the supreme court asking it strike down provisions of the legal arizona workers act which suspended or revokes business licenses of corporations which knowingly hire illegal immigrants even though federal law expressly prohibits such hiring. she did this after the liberal ninth circuit upheld the law. this is an important legal issue the court will resolve. after promises to this committee she would vigorously defend congress's don't ask, don't tell policy if it were challenge in court the actions she has taken as solicitor general do appear to have deliberately and unnecessarily placed that law in jeopardy. importantly, throughout her career ms. kagan has associated herself with well-known activist judges who have used their power to redefine the meaning of words of our constitution and laws in ways that not surprisingly have the result of advancing that judge's preferred social policy . she clerked for two well known justices, sthese judges don't deny activist ideas, but advocate it and openly criticize a judge is a umpire. in many respects ms. kagan 's career has been consumed more by politician than law. this does worry many americans n. the wake of one of the a largest expansions of government power in history, many americans are worried about washington's disregard for limits on its power. americans know our exceptional constitution was written to ensure our federal government is one of limited, separated powers and part of a federal/state system with individual rights reserved to our free people. we've watched as the president and congress have purchased ownership shares in banks, nationalized car companies, seized control of the student loan industry, taken over large sectors of our nation's health care system and burdened generations of americans with crippling debt. this all sounds a lot like an aggressive philosophy that became fashionable among elite intellectuals a century ago and seeing a revival. they saw the constitution as an outdated impet meant to a new social and political order in america. even today president obama advocates a judicial philosophy that calls on judges to base their decisions on empathy and their broader vision of what america should be. he suggests that his nominee shares those views. our legal system does not allow such an approach. americans want a judge that will be a check on government overreach, not a rubber stamp . no individual nominated by a president of either party should be confirmed as a judge if he or she does not understand that the judge's role is to fairly settle disputes of law and not set policy for the nation. broad affirmations of fidelity to law during these hearings will not settle the question. one's record also speaks loudly. indeed, it is easy to pledge fidelity to law when you believe you can change its meaning later if you become a judge. ms. kagan has called confirmation hearings vapd, some probably have been, and argued nominees of a life time position owe a greater deal of candor and openness to the kbheet. i agree that condor is needed and look forward to this good exchange this week. mr. chairman.

updated 6/28/2010 4:56:44 PM ET 2010-06-28T20:56:44

Supreme Court nominee Elena Kagan pledged at her Senate confirmation hearing Monday to show the "evenhandedness and impartiality" the Constitution demands if she is confirmed, and to offer proper deference to Congress and the laws it makes.

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The court must ensure that "our government never oversteps its proper bounds or violates the rights of individuals," she said before a rapt Judiciary Committee and a nationwide television audience on the opening day of her hearing. "But the court must also recognize the limits on itself and respect the choices made by the American people."

The 50-year-old solicitor general and former Harvard Law School dean appeared on track for confirmation before the high court opens a new term in October as she delivered a brief statement at the end of a day of senatorial speechmaking.

Kagan stopped by the Oval Office of the White House to receive best wishes from President Barack Obama on her way to the hearing. A few moments and little more than a mile distant, she strode with a smile into the committee room and took her place at the witness table — where senatorial ritual then required her to sit for hours while lawmakers delivered prepared speeches from an elevated dais across the room.

Finally, at mid-afternoon, it was her turn. "I will listen hard, to every party before the court and to each of my colleagues. I will work hard. And I will do my best to consider every case impartially, modestly, with commitment to principle and in accordance with law," she said.

Kagan faces hours of questioning, both friendly and otherwise, when the panel meets on Tuesday, a grilling that she has spent hours preparing for under the tutelage of White House advisers.

Already the political fault lines were well-drawn.

"I believe the fair-minded people will find her philosophy well within the legal mainstream," said Sen. Patrick Leahy, D-Vt., the panel's chairman. "I welcome questions but urge senators on both sides to be fair. No one should presume that this intelligent woman who has excelled during every part of her varied and distinguished career, lacks independence."

But the committee's senior Republican signaled that Kagan can expect tough questioning. "It's not a coronation but a confirmation process," said Sen. Jeff Sessions of Alabama. He said she had "less real legal experience of any nominee in at least 50 years." And he said her decision to bar military recruiters from Harvard Law School's career services office was in violation of the law — a legal conclusion disputed by the White House.

Leahy and Sessions both said they hoped Kagan would answer questions candidly, although the chairman also cautioned, "No senator should seek to impose an ideological litmus test to secure promises of specific outcomes in cases coming before the Supreme Court."

Judging by recent confirmation history, there was little chance that Kagan would run afoul of that admonition. In the past quarter century, most nominees have pledged fealty to the Constitution and legal precedent — and little else — in their efforts to win approval.

Obama nominated Kagan to succeed retiring Justice John Paul Stevens, a frequent dissenter in a string of 5-4 rulings handed down by a conservative majority under Chief Justice John Roberts.

Strikingly there were several such rulings in the hours before the hearing opened. In one, the court struck down part of an anti-fraud law enacted in 2002 in response to scandals involving Enron and other corporations.

In another, a 5-4 majority said the right to bear arms can't be limited by state or local laws any more than by federal legislation.

Kagan's opening statement touched on her parents' growing up in immigrant communities. She also praised Stevens, expressed a debt of gratitude to Justices Sandra Day O'Connor and Ruth Bader Ginsburg for living "pioneering lives" and described the current members of the court in glowing terms.

She also recalled a clerkship nearly a quarter-century ago for Justice Thurgood Marshall, who she said viewed the court as the part of government most open to everyone.

"The idea is engraved on the very face of the Supreme Court building: Equal Justice Under Law," she said. "What this commands of judges is evenhandedness and impartiality. What it promises is nothing less than a fair shake for every American."

One Republican on the committee, Sen. Lindsey Graham of South Carolina, said he could say with certainty that Kagan's nomination wouldn't change the balance of power on the court. But in a reference to Obama, he added, "I hope people will understand that elections do matter."

A handful of protesters gathered outside the Senate Hart Office Building across the street from the Capitol, some opposing Kagan's nomination, others expressing unhappiness that Republicans haven't done more to block it.

By midmorning about 200 people had claimed tickets for seats in the hearing room, the first ones arriving as early as 6:30 to line up in the heat. By the time Kagan spoke, at mid-afternoon, the lined had dwindled considerably — scarcely a half-dozen would-be spectators were waiting for a chance to view the proceedings.

"The Supreme Court is a wondrous institution. But the time I spent in the other branches of government remind me that it must also be a modest one," Kagan said in her remarks, but did not elaborate on that point or on her statement that she would accord proper deference to Congress if confirmed.

Numerous Democrats complained that under Chief Justice John Roberts the court has strayed far beyond what Congress intended when it wrote laws regarding campaign finance, workplace rights and other issues. Conservatives on the court "can be and are very activist judges," Leahy told reporters after gaveling the day's session to a close.

In a similar vein, Republicans argue that Obama is determined to turn the court in a more liberal direction.

Several Republicans expressed concerns Kagan would become a judicial activist along the lines of Marshall. Confirmed in 1967 as the first black justice in history, he was a civil rights lawyer best known in his earlier career for successfully arguing the case in which the Supreme Court ruled that segregation of public schools along racial lines was unconstitutional. As a young lawyer, Kagan was one of his clerks at the high court.

Earlier in the day, Leahy predicted that Kagan would be cleared with votes to spare. He brushed off GOP questions about her lack of judicial experience, saying there had been many successful justices who had no previous bench time. He cited Earl Warren, Hugo Black and Robert Jackson.

Sessions said he hoped there wouldn't be a filibuster, but said he was concerned that Kagan may be "outside the mainstream" of legal thinking. He said Republicans have serious questions to resolve, including whether she would be too driven by her political views if she were to take a place on the high court.

The GOP was set to grill Kagan on controversial issues from guns to abortion to campaign finance, arguing that she'd bring liberal politics and an antimilitary bias to the job of a justice.

One of the issues Republicans have already focused on was her decision, while at Harvard, to bar recruiters from the career services office because the military's policy on homosexuality violated the school's nondiscrimination rules. She was also strongly critical of the "don't ask, don't tell" policy.

The Pentagon said Kagan's stance made Harvard ineligible for federal funding under a law that required schools to give military recruiters the same access as other employers, a different interpretation from Sessions' statement that she had violated the law.

Kagan's swearing-in would mark the first time three women would be on the court at the same time. Justices Ruth Bader Ginsburg and Sotomayor are the other two.

Copyright 2010 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Timeline: The history of the Supreme Court

Key moments in the storied history of the nation's highest court.

Photos: Elena Kagan, Supreme Court-bound?

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  1. In this image released by the White House, shows 9-year-old Elena Kagan, left, with her family on Jan. 24, 1970. (AP) Back to slideshow navigation
  2. Elena Kagan selected a quotation from former Supreme Court Justice Felix Frankfurter to accompany this photo from 1977 in her Hunter College high school year book: "Government is itself an art, one of the subtlest of arts." (Ellen Purtell / Hunter High School via AP) Back to slideshow navigation
  3. In this undated photo released by Hunter College High school, Kagan, second from left in the front row, poses with members of the student government in the school's 1977 yearbook. Kagan, wearing a robe and holding a gavel, was the student council president. (Ellen Purtell / /Hunter High School via AP) Back to slideshow navigation
  4. Elena Kagan, standing, served as editorial chairman for The Daily Princetonian while she studied history as an undergraduate at the university. The New York City native graduated in 1981. (Courtesy of The Daily Princetonian) Back to slideshow navigation
  5. Kagan graduated in 1981 summa cum laude from Princeton with a degree in history. (Courtesy of Princeton University) Back to slideshow navigation
  6. Kagan joined the University of Chicago Law School faculty as an assistant professor in 1991 and served as a tenured professor from 1995 to 1997. (AP) Back to slideshow navigation
  7. In this 1992 photo provided by the University of Chicago Law School, Elena Kagan, left, then an assistant professor at the university, participates in the law school's faculty-student trivia contest with Daniel Shaviro, former law school professor, now with New York University. (AP) Back to slideshow navigation
  8. In this 1993 photo provided by the University of Chicago Law School, assistant professor Elena Kagan plays in a softball game. (AP) Back to slideshow navigation
  9. In 1999, Kagan, who earned her law degree at Harvard University, returned to the campus as a member of the faculty. This photo provided by the university shows Kagan in 2003 when she was the law school dean. (Harvard University via AP) Back to slideshow navigation
  10. Former U.S. Supreme Court Justice Sandra Day O'Connor talks to Solicitor General Kagan during the forum "Striking the Balance: Fair and Independent Courts in a New Era" at Georgetown University Law Center May 20, 2009. (Chip Somodevilla / Getty Images) Back to slideshow navigation
  11. U.S. Solicitor General Kagan addresses the forum "Striking the Balance: Fair and Independent Courts in a New Era" at Georgetown University Law Center May 20, 2009 in Washington, DC. (Chip Somodevilla / Getty Images) Back to slideshow navigation
  12. When Supreme Court Justice Stevens announced his retirement, Kagan's name was quickly floated as a potential replacement. A year earlier, the Senate confirmed her as Solicitor General by a vote of 61-31, with only seven Republicans supporting her. (Jay Mallin / Zuma Press) Back to slideshow navigation
  13. President Barack Obama meets with Solicitor General Elena Kagan in the Oval Office April 30, 2010. (Pete Souza / White House handout) Back to slideshow navigation
  14. Vice President Joe Biden, left, and President Barack Obama, right, applaud as Solicitor General Elena Kagan accepts her nomination to the Supreme Court at the White House in Washington on Monday May 10, 2010. (Jim Watson / AFP - Getty Images) Back to slideshow navigation
  15. Supreme Court nominee Elena Kagan, rides the Senate subway during a day of meetings on Capitol Hill in Washington, D.C., on May 12. (Harry Hamburg / AP) Back to slideshow navigation
  16. Senate Majority Leader Harry Reid meets with Elena Kagan on Capitol Hill on May 12. (Alex Brandon / AP) Back to slideshow navigation
  17. Elena Kagan talks with Sen. Arlen Specter in his office on Capitol Hill on May 13. (Alex Brandon / AP) Back to slideshow navigation
  18. Elena Kagan sits with Sen. Lindsey Graham on May 18 as part of her visits with senators who will vote on her confirmation to replace retiring Justice John Paul Stevens on the Supreme Court. (Mark Wilson / Getty Images) Back to slideshow navigation
  19. Supreme Court nominee Elena Kagan listens to opening statements by members of the Senate Judiciary Committee on the first day of her confirmation hearings on Capitol Hill June 28, in Washington, D.C. Kagan is President Barack Obama's second Supreme Court nominee since taking office. (Pablo Martinez Monsivias / Pool via Getty Images) Back to slideshow navigation
  20. Elena Kagan is sworn in as the Supreme Court's newest member as Chief Justice John Roberts, right, administers the judicial oath, at the Supreme Court Building in Washington, D.C., on Saturday, Aug. 7. The Bible is held by Jeffrey Minear, center, counselor to the chief justice. Kagan, 50, who replaces retired Justice John Paul Stevens, becomes the fourth woman to sit on the high court, and is the first Supreme Court justice in nearly four decades with no previous experience as a judge. (J. Scott Applewhite / AP) Back to slideshow navigation
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