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REMARKS ON THE NOMINATION OF ELENA KAGAN TO BE AN ASSOCIATE JUSTICE

OF THE SUPREME COURT OF THE UNITED STATES

U.S. SENATOR JON KYL


AUGUST 3, 2010

Elena Kagan is intelligent, well spoken, personable, and schooled in the law. She is
skilled in the art of argument—perhaps to a fault. Ignoring her own advice in the now famous
University of Chicago law review article,1 she did not testify meaningfully before the Judiciary
Committee, concealing and disguising her views, and playing the same game of “hide the ball”
as those who went before her, albeit with more skill than some.
Probably because she criticized the practice so directly,2 many expected her to set a
different standard. Others have asked whether Judiciary Committee hearings have been rendered
largely free of substance and what, if anything, can be done about it. Former Judiciary
Committee Chairman Arlen Specter, who lamented that Ms. Kagan had not during her testimony
“answered much of anything,” said this:
It would be my hope that we could find someplace between voting no and having
some sort of substantive answers. . . . But I think we are searching for a way how
senators can succeed in getting substantive answers, as you advocated in the
Chicago Law Review, short of voting no.3
I confess that, like Senator Specter, I don’t know how we can force nominees to be forthcoming
except through our votes.

                                                            
1
Elena Kagan, Confirmation Messes, Old and New, 62 U. Chi. L. Rev. 919, 926 (1995).
2
“When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process
takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or
appropriately educating the public. Whatever imperfections may have attended the Bork hearings pale in comparison
with these recent failures.” Elena Kagan, Confirmation Messes, Old and New, 62 U. Chi. L. Rev. 919, 926 (1995).
3
Senate Judiciary Committee Holds Hearing on the Nomination of Solicitor General Elena Kagan to be an
Associate Justice of the U.S. Supreme Court, Day 3, CQ Cong. T. (June 30, 2010) (questions of Senator Specter).
Senator Specter also wrote in a USA Today column that “Supreme Court nominee Elena Kagan did little to undo the
impression that nominating hearings are little more than a charade in which cautious non-answers take the place of
substantive exchanges” and “[o]n balance, Kagan did little to move the nomination hearings from the stylized ‘farce’
(her own words) they have become into a discussion of substantive issues that reveal something of the nominee’s
judicial philosophy and predictions.” Arlen Specter, Specter: ‘Kagan Did Just Enough To Win My Vote’, USA
Today, July 14, 2010, at http://www.usatoday.com/news/opinion/forum/2010-07-15-column15_ST1_N.htm.
To be clear, my threshold for supporting a nominee does not require answering how one
would vote on issues sure to come before the Court, nor necessarily expressing agreement or
disagreement with decisions or Court opinions. It is possible to learn much about a nominee’s
approach to judging without committing one to a specific position in future cases.
What we should expect, however, is candor and a willingness to honestly discuss
background, general constitutional principles, approaches to judging, and writings and matters
within the nominee’s background that bear on the nominee’s suitability for the bench.
In explaining why I could not support now-Justice Sotomayor, I said I thought she was
disingenuous with the Judiciary Committee.4 Obviously, reaching such a conclusion precludes
support, notwithstanding other qualifications for the position.
Reluctantly, after an analysis of her testimony, weighed with her past writings,
statements, and actions, I have reached the same conclusion regarding Elena Kagan.
Exhibit A is her insistence on redefining her position on military recruiting on the
Harvard campus. Her “separate but equal” defense and attempt to downplay the steps she took
to undermine the legal policy of “don’t ask, don’t tell” were, ultimately, unbelievable.5 It is
almost unfathomable, for example, that someone with Ms. Kagan’s considerable legal acumen
could have, as she asserted, “always thought that we were acting in compliance” with the
Solomon Amendment.6
Ms. Kagan tried to convince the Judiciary Committee that her actions against the military
were a justifiable response to a policy that she viewed as discriminating against homosexuals.7
But, as Senator Sessions noted, her stand against homosexual discrimination was not universal.
She did not speak out, for example, when Harvard accepted $20 million from a member of the
Saudi royal family to establish a center for the study of Sharia law, even though under Sharia law
“sexual activity between two persons of the same gender is punishable by death or flogging.”8
Her decision to punish the military for a policy adopted by Congress is especially perplexing,
given her failure to express concern over, or take action against, the establishment of a center to
promote a legal system linked to abuses of homosexuals, women, and others.
                                                            
4
155 Cong. Rec. S8822 (daily ed. Aug. 5, 2009) (statement of Senator Kyl) (“[Judge Sotomayor’s] sworn testimony
was evasive, lacking in substance, and, in several instances, incredibly misleading.”).
5
For example, Ms. Kagan stated during her testimony that the “military at all times . . . had full and good access” to
Harvard Law School and that the veterans association provided the “same” services as the Office of Career Services.
These assertions are belied by documents that are now in the public record.
6
Senate Judiciary Committee Holds Hearing on the Nomination of Solicitor General Elena Kagan to be an
Associate Justice of the U.S. Supreme Court, Day 2, CQ Cong. T. (June 29, 2010) (responding to Senator Session’s
questions).
7
Senate Judiciary Committee Holds Hearing on the Nomination of Solicitor General Elena Kagan to be an
Associate Justice of the U.S. Supreme Court, Day 2, CQ Cong. T. (June 29, 2010) (responding to Senator Session’s
questions).
8
156 Cong. Rec. S4969 (daily ed. June 16, 2010) (quoting an Obama State Department report concerning Saudi
Arabia and the Sharia law concept).
  ‐ 2 ‐
Exhibit B is her astonishing redefinition of what she meant in her effusive praise for
Justice Marshall’s “vision” of the role of the Court, presumably to avoid the obvious conclusion
that she agreed with his activist approach to judging. Justice Marshall had an enormous
influence on our jurisprudence starting with his advocacy before—and most especially with—
Brown v. Board of Education.9 But no serious student would argue that he didn’t try to push the
law as far as he could in furtherance of his philosophy. Indeed, consider the comments of
another former Marshall clerk, liberal law professor Cass Sunstein, who now serves in the
Obama Administration: “A serious commitment to Marshall’s vision [of constitutional liberty]
would entail an extraordinary judicial role, one for which courts are quite ill-suited.”10 Sunstein
has also acknowledged that “[e]ven if the best substantive theory calls for something like
Marshall’s vision, institutional considerations would argue powerfully against it.”11 Ms. Kagan’s
attempt to define Justice Marshall’s philosophy as meaning only that he wanted everyone to have
equal access to the courts is—there is no other word for it—disingenuous.
Because Ms. Kagan apparently embraces his philosophy but feared public
acknowledgement of that would confirm the concern that she would be a “results oriented”
judge, she fudged. In so doing, she confirmed the suspicion and compounded the problem with
deceptive testimony.
Exhibit C is the explanation of several of her bench memos to Justice Marshall insisting
that they did not contain her views, but a “channeling” of his.12 Ms. Kagan offered this
explanation for a memo categorizing litigants as “good guys” and “bad guys,”13 a memo stating
that the government was “for once on the side of the angels,”14 and a memo expressing fear that
the Court might “create some very bad law on abortion and/or prisoners’ rights.”15 Reading
these memos, one gets the sense that Ms. Kagan was not simply “channeling” her boss, but was
instead expressing her own personal policy views on matters before the Court, and, that they had
as much to do with who the litigants were as what the issues were.

                                                            
9
347 U.S. 483 (1954).
10
Cass R. Sunstein, On Marshall's Conception of Equality, 44 STAN. L. REV. 1267, 1273 (1992).
11
Cass R. Sunstein, On Marshall's Conception of Equality, 44 STAN. L. REV. 1267, 1274 (1992).
12
Senate Judiciary Committee Holds Hearing on the Nomination of Solicitor General Elena Kagan to be an
Associate Justice of the U.S. Supreme Court, Day 1, CQ Cong. T. (June 28, 2010) (responding to Senator Kyl’s
questions); Confirmation Hearings on the Nominations of Thomas Perrelli Nominee to be Associate Attorney
General of the United States and Elena Kagan Nominee to be Solicitor General of the United States: Hearing
Before the Senate Comm. on the Judiciary, 111th Cong., 1st Sess. (Feb. 10, 2009) (S. Hrg. 111-361), at 99
(statement of Elena Kagan).
13
Memorandum from Elena Kagan on Cooper v. Kotarski, 487 U.S. 1212 (1988), cert. granted, to Justice Thurgood
Marshall, 86-1813 (Aug. 5, 1987) (on file with the Library of Congress).
14
Memorandum from Elena Kagan on United States v. Kozminski, 487 U.S. 931 (1988), cert. granted, to Supreme
Court Chief Justice Thurgood Marshall, 86-2000 (Aug. 5, 1987) (on file with the Library of Congress).
15
Memorandum from Elena Kagan on Lanzaro v. Monmouth County, 486 U.S. 1006 (1988), cert. denied, to
Supreme Court Chief Justice Thurgood Marshall, 87-1431 (Apr. 26, 1988) (on file with the Library of Congress).

  ‐ 3 ‐
Ms. Kagan also attempted to recast her praise of Israeli Supreme Court Justice Aharon
Barak, who, in the words of the Associated Press, is widely acknowledged as someone “who
took an activist approach to judging.”16 That’s Exhibit D. Judge Richard Posner described
Justice Barak’s history on the Israeli Supreme Court as “creat[ing]. . . a degree of judicial power
undreamed of even by our most aggressive Supreme Court justices.”17

Under his leadership, the Israeli Supreme Court aggrandized its own power far beyond
what even many of those on the left would view as acceptable in America. To cite one example
of Justice Barak’s judicial philosophy, he wrote that a judge’s role “is not restricted to
adjudicating disputes in which parties claim that their personal rights have been violated,” but
rather “to bridge the gap between law and society.”18

Clearly, “bridging gaps” and using the law to address societal problems is not the job of
the courts. That’s a political approach.

Ms. Kagan claimed during her hearing that her praise for Justice Barak had nothing to do
with his left-wing judicial philosophy. But an examination of her statements tells a different
story.

In 2002, Ms. Kagan praised Aharon Barak for “presid[ing] over the development of one
of the most principled legal systems in the world.”19

In 2006, Ms. Kagan again heaped professional praise on Justice Barak, calling him her
“judicial hero.” Ed Whelan, a noted legal commentator, summarized this event well: “Kagan
begins by referring to the portraits of four ‘great justices’ with whom Harvard Law School has
been associated—Brandeis, Holmes, Brennan, and Frankfurter. But, she says, ‘the Harvard Law
School association of which I’m most proud’—more proud, that is, than of the associations with
                                                            
16
Associated Press, Critics, supporters step up their efforts on Kagan, June 23, 2010, at http://www.wbur.org/
2010/06/24/ kagan-supreme-court-6. It is noteworthy that under the leadership of Aharon Barak, the Israeli
Supreme Court aggrandized its own power far beyond what even liberals would deem acceptable in America. And,
in his 2006 book entitled The Judge in a Democracy, Barak wrote that a judge’s role “is not restricted to
adjudicating disputes in which parties claim that their personal rights have been violated,” but rather “to bridge the
gap between law and society.” Aharon Barak, The Judge in a Democracy 193 (Princeton U. Press 2006). The same
quote appears in a lecture entitled “Human Rights in Israel” delivered as part of the annual John Foster Lecture
Series at University College of London, on Nov. 1, 2005 and in the following book: Mohr Siebeck, Ethics and
Human Rights in a Globalized World 27 (Klaus Hoffman-Holland 2009).

17
Richard A. Posner, Enlightened Despot, The New Republic, ¶ 3 (Apr. 23, 2007), http://www.tnr.com/article/
enlightened-despot (A similar quote appears in Richard A. Posner, How Judges Think 363 (Harv. U. Press 2010).

18
Aharon Barak, The Judge in a Democracy 193 (Princeton U. Press 2006). The same quote appears in a lecture
entitled “Human Rights in Israel” delivered as part of the annual John Foster Lecture Series at University College of
London, on Nov. 1, 2005 and in the following book: Mohr Siebeck, Ethics and Human Rights in a Globalized World
27 (Klaus Hoffman-Holland 2009).

19
Elana Kagan, Dean, Harvard Law School, The Role of the Supreme Court in a Democracy, at 6 min., 6 sec. (Nov.
11, 2002) (video available at http://www.cspanarchives.org/program/174324-1) (emphasis added).

  ‐ 4 ‐
Brandeis, Holmes, Brennan, or Frankfurter—‘is the one we have with President Barak of the
Israeli Supreme Court.’”20

Ms. Kagan continued: “I told President Barak, and I want to repeat in public, that he is
my judicial hero. He is the judge or justice in my lifetime whom [sic], I think, best represents
and has best advanced the values of democracy and human rights, of the rule of law and of
justice.”21

During her confirmation hearing, Ms. Kagan, under oath, testified that she admired Justice Barak
for his role in “creating an independent judiciary for Israel . . . . not for his particular judicial
philosophy, not for any of his particular decisions.”22 That testimony cannot be squared with her
public declaration that Justice Barak “is the judge or Justice in my lifetime whom [sic], I think,
best represents and has best advanced the values of democracy and human rights, of the rule of
law and of justice.”23
Exhibit E is Ms. Kagan’s answer to whether she is a legal “progressive.” Her statements,
again, were clearly designed to cloud her views. Vice President Biden’s chief of staff, Ron
Klain—who served as chief counsel of the Senate Judiciary Committee, chief of staff to Attorney
General Reno, and chief of staff to Vice President Gore24—has known Ms. Kagan as far back
1993, when they worked together on the Ginsburg hearings.25 At Ms. Kagan’s hearing, Senator
                                                            
20
Ed Whelan, More on Kagan’s “Judicial Hero,” Aharon Barak, National Review Online, ¶ 2 (May 27, 2010),
http://www.nationalreview.com/bench-memos/56132/more-kagan-s-judicial-hero-aharon-barak/ed-whelan.
21
Elana Kagan, Dean, Harvard Law School, Sixth Annual Justice Prize of the Peter and Patricia Gruber Foundation,
at 3 min., 1 sec. (Oct. 15, 2006) (video available at http://www.senate.gov/fplayers/I2009/urlOfficeOpenPlayer.
cfm?fn=9093039100519112912).
22
Senate Judiciary Committee Holds Hearing on the Nomination of Solicitor General Elena Kagan to be an
Associate Justice of the U.S. Supreme Court, Day 2, CQ Cong. T. (June 29, 2010) (responding to Senator Grassley’s
questions) (emphasis added). Later in the hearing, Ms. Kagan reiterated this point: “my admiration for Justice
Barak comes from his important role of the state of Israel in ensuring an independent judiciary and most
fundamentally in ensuring that Israel is this strong rule of law nation.” Senate Judiciary Committee Holds Hearing
on the Nomination of Solicitor General Elena Kagan to be an Associate Justice of the U.S. Supreme Court, Day 2,
CQ Cong. T. (June 29, 2010) (responding to Senator Grassley’s questions). She stressed that “nothing about what I
said about Justice Barak suggests in any way that I think that his ideas about the judge's role in constitutional
interpretation should be transplanted to the United States.” Senate Judiciary Committee Holds Hearing on the
Nomination of Solicitor General Elena Kagan to be an Associate Justice of the U.S. Supreme Court, Day 2, CQ
Cong. T. (June 29, 2010) (responding to Senator Grassley’s questions).
23
Elana Kagan, Dean, Harvard Law School, Sixth Annual Justice Prize of the Peter and Patricia Gruber Foundation,
at 3 min., 1 sec. (Oct. 15, 2006) (video available at http://www.senate.gov/fplayers/I2009/urlOfficeOpenPlayer.
cfm?fn=9093039100519112912).
24
Ronald A. Klain, N.Y. Times (last viewed July 23, 2010), http://topics.nytimes.com/topics/reference/timestopics/
people/k/ronald_a_klain/index.html (emphasis added).
25
Greg Stohr, Elena Kagan Selected by Obama for U.S. Supreme Court (Update4), Bloomberg Businessweek (May
10, 2010), http://www.businessweek.com/news/2010-05-10/elena-kagan-selected-by-obama-for-u-s-supreme-court-
update4-.html.

  ‐ 5 ‐
Sessions pointed out that after Ms. Kagan was nominated, Mr. Klain said, “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, worked in the Obama administration. I don’t think there’s any mystery to the
fact that she is, as I said, of more of the progressive role than not.”26 Senator Sessions then asked
Ms. Kagan, “do you agree with the characterization that you’re a legal progressive?” She
replied, “I honestly don’t know what that label means.”27
Senator Sessions pressed Ms. Kagan: “I’m asking about his firm statement that you are a
legal progressive, which means something. I think he knew what he was talking about. He’s a
skilled lawyer 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.”28 She again dodged, with an answer that strains credulity: “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.”29
So, a nominee to the highest court in the land and a former dean of one of the nation’s
most prestigious law schools insists that she doesn’t know what the term “legal progressive”
means.
But later in the hearing, Senator Graham mentioned that Greg Craig, President Obama’s
first White House Counsel, had praised Ms. Kagan.30 Mr. Craig said “[Elena Kagan] is largely a
progressive in the mold of Obama himself.”31 Senator Graham asked, “Would you consider

                                                            
26
Mike Madden, White House Tries, Sort Of, To Calm Liberal Doubts About Kagan, Salon.com (May 10, 2010),
http://www.salon.com/news/politics/war_room/2010/05/10/white_house_calls_elena_kagan_progressive.
27
Senate Judiciary Committee Holds Hearing on the Nomination of Solicitor General Elena Kagan to be an
Associate Justice of the U.S. Supreme Court, Day 2, CQ Cong. T. (June 29, 2010) (responding to Senator Session’s
questions).
28
Senate Judiciary Committee Holds Hearing on the Nomination of Solicitor General Elena Kagan to be an
Associate Justice of the U.S. Supreme Court, Day 2, CQ Cong. T. (June 29, 2010) (responding to Senator Session’s
questions).
29
Senate Judiciary Committee Holds Hearing on the Nomination of Solicitor General Elena Kagan to be an
Associate Justice of the U.S. Supreme Court, Day 2, CQ Cong. T. (June 29, 2010) (responding to Senator Session’s
questions).
30
Senate Judiciary Committee Holds Hearing on the Nomination of Solicitor General Elena Kagan to be an
Associate Justice of the U.S. Supreme Court, Day 2, CQ Cong. T. (June 29, 2010) (statement of Senator Graham).
31
Roundtable: Confirmation Battle (ABC News television broadcast May 16, 2010) at 10 min., 5 sec.,
http://abcnews.go.com/ThisWeek/video/roundtable-kagans-confirmation-battle-10660203.

  ‐ 6 ‐
them, your political views, progressive?”32 Then Ms. Kagan acknowledged that her “political
views are generally progressive.”33
It’s hard to believe Ms. Kagan knows what a “political progressive” is, but not a “legal
progressive.”
Exhibit F: Her attempt to redefine her views in the letter sent to the Judiciary Committee
on November 14, 2005, objecting to the Graham-Kyl-Cornyn amendment dealing with treatment
of enemy detainees.34 Her characterization of our approach as being similar to the
“fundamentally lawless” actions of “dictatorships”35 was clearly injudicious and revealed the
fervor of her position, much like her characterization of the Don’t Ask, Don’t Tell policy as “a
moral injustice of the first order,”36 and could suggest a viewpoint that she would have a hard
time laying aside if similar questions ever came before her as a Supreme Court justice.
And her attempt to distance herself from the obvious application of her views to places
other than GITMO (obvious because her letter bemoaned the “serious and disturbing reports of .
. . the abuse of prisoners in Guantanamo, Iraq and Afghanistan”)37 and issues other than
conviction and sentencing (even though her letter stated that our amendment “unfortunately”
would “prohibit challenges to detention practices, treatment of prisoners, adjudications of their
guilt and their punishment”)38 suggests either she was uncomfortable defending her position or
wanted to preserve her right to sit on such cases in the future, or both. The attempt to obscure
positions she had previously stated was, I believe, an attempt to run away from those positions
and mislead the Committee.
Exhibit G: Ms. Kagan’s doublespeak on the question of same-sex marriage. Prior to her
confirmation as Solicitor General, when she was not restricted, as judicial nominees are, in her
ability to comment on issues that may come before the courts, Senator Cornyn asked Ms. Kagan
a direct question about her personal views: “Do you believe that there is a federal constitutional
                                                            
32
Senate Judiciary Committee Holds Hearing on the Nomination of Solicitor General Elena Kagan to be an
Associate Justice of the U.S. Supreme Court, Day 2, CQ Cong. T. (June 29, 2010) (statement of Senator Graham).
33
Senate Judiciary Committee Holds Hearing on the Nomination of Solicitor General Elena Kagan to be an
Associate Justice of the U.S. Supreme Court, Day 2, CQ Cong. T. (June 29, 2010) (responding to Senator Graham’s
questions).
34
Detainees at Guantanamo Bay Amendment, S.Amdt. 2515 (submitted 11/10/2005; proposed 11/10/2005; agreed
to by voice vote 11/15/2005).
35
151 Cong. Rec. S12802 (daily ed. Nov. 15, 2005) (letter placed in record by Senator Leahy).
36
Email from Elena Kagan, Dean, Harvard Law School, to Harvard Law School Community (Oct. 6, 2003).
37
151 Cong. Rec. S12802 (daily ed. Nov. 15, 2005) (letter placed in record by Senator Leahy). At her hearing, Ms.
Kagan said: “I don’t think that that letter expresses a view on the question of habeas rights at Bagram. I think that
that letter was focused on the Guantanamo issue.” Senate Judiciary Committee Holds Hearing on the Nomination of
Solicitor General Elena Kagan to be an Associate Justice of the U.S. Supreme Court, Day 3, CQ Cong. T. (June 30,
2010) (responding to Senator Kyl’s questions).
38
151 Cong. Rec. S12802 (daily ed. Nov. 15, 2005).

  ‐ 7 ‐
right to same-sex marriage?”39 Her answer then seemed clear. She wrote, “There is no federal
constitutional right to same-sex marriage.”40 But, at the hearing, when I asked Ms. Kagan to
confirm her views on this subject, she distorted both Senator Cornyn’s question and her answer.
She told me that Senator Cornyn had asked whether she could “perform the role of the Solicitor
General” and vigorously defend DOMA, given her opposition to Don’t Ask, Don’t Tell.41 When
I pointed out that Senator Cornyn’s question was about a constitutional right to same-sex
marriage, not DOMA, Ms. Kagan then asserted that her answer to Senator Cornyn—that “[t]here
is no federal constitutional right to same-sex marriage”—intended to convey that she
“understood the state of the law and . . . accepted the state of the law.”42 Having reinterpreted
her previous answer, she then told me that, as a Supreme Court nominee, it would not be
“appropriate” for her to share her personal views on the subject, since such a case may come
before the Court. It strikes me that Ms. Kagan was, at the time of her nomination to be Solicitor
General, trying to create an impression—apparently a false one—that she did not personally
believe the Constitution could be read to include a right to same-sex marriage.
That leads to Exhibit H: her involvement, while serving as Solicitor General, in a case
concerning the constitutionality of the Defense of Marriage Act (DOMA.)

When nominated for the job of Solicitor General, Ms. Kagan emphasized in her opening
statement the “critical responsibilities” that the Solicitor General owes to Congress, “most
notably the vigorous defense of the statutes of this country against constitutional attack.”43
Later, Ms. Kagan reiterated that she could represent the interests of the United States “with
vigor, even when they conflict with my own opinions. I believe deeply that specific roles carry
with them specific responsibilities and that the ethical performance of a role demands carrying
out these responsibilities as well and completely as possible.”44

                                                            
39
Response of Solicitor General Nominee Elena Kagan to Written Questions of Senator Cornyn (Feb. 10, 2009) (on
file with the Senate Judiciary Committee).
40
Response of Solicitor General Nominee Elena Kagan to Written Questions of Senator Cornyn (Feb. 10, 2009) (on
file with the Senate Judiciary Committee).
41
Senate Judiciary Committee Holds Hearing on the Nomination of Solicitor General Elena Kagan to be an
Associate Justice of the U.S. Supreme Court, Day 3, CQ Cong. T. (June 30, 2010) (responding to Senator Kyl’s
questions).
42
Senate Judiciary Committee Holds Hearing on the Nomination of Solicitor General Elena Kagan to be an
Associate Justice of the U.S. Supreme Court, Day 3, CQ Cong. T. (June 30, 2010) (responding to Senator Kyl’s
questions).
43
Confirmation Hearings on the Nominations of Thomas Perrelli Nominee to be Associate Attorney General of the
United States and Elena Kagan Nominee to be Solicitor General of the United States: Hearing Before the Senate
Comm. on the Judiciary, 111th Cong., 1st Sess. (Feb. 10, 2009) (S. Hrg. 111-361, Serial No. J-111-81), at 47
(statement of Elana Kagan).
44
Confirmation Hearings on the Nominations of Thomas Perrelli Nominee to be Associate Attorney General of the
United States and Elena Kagan Nominee to be Solicitor General of the United States: Hearing Before the Senate
Comm. on the Judiciary, 111th Cong., 1st Sess. (Feb. 10, 2009) (S. Hrg. 111-361, Serial No. J-111-81), at 172
(statement of Elana Kagan).
  ‐ 8 ‐
Ms. Kagan even cited former Solicitor General Ted Olson’s defense of the campaign
finance laws as an example of the way a Solicitor General should approach the job. She said, “I
know that Ted Olson would not have voted for the McCain-Feingold bill, but he . . . did an
extraordinary job of defending that piece of legislation . . . . And that’s what a solicitor general
does.”45

Yet, there is substantial reason to doubt that Ms. Kagan genuinely carried out her
obligation to “vigorously defend” a federal statute in district court, the Defense of Marriage Act.
In response to questions at her Supreme Court hearing, Ms. Kagan acknowledged that she was
involved in two district court cases involving DOMA.46 Her personal involvement in these cases
was itself unusual—as she admitted in response to written questions: “In the normal course, the
[Solicitor General’s] Office does not participate in district court litigation.”47

Her involvement would not have necessarily raised concerns were it not for the position
that the government advocated in the cases. In the first case, Smelt v. United States,48 the
Department of Justice filed a brief that, as part of its so-called “defense” of the DOMA statute,
admitted to the court that “this Administration does not support DOMA as a matter of policy,
believes that it is discriminatory, and supports its repeal.”49 How can a lawyer mount a
“vigorous” defense of a statute while declaring the statute to be discriminatory? But it gets
worse. The Justice Department’s brief also asked the court to ignore one of the strongest
arguments in support of DOMA—namely that traditional marriage serves as a valuable vehicle
for encouraging responsible procreation and childbearing. The brief asserted that the
government “does not believe that DOMA is rationally related to any legitimate government
interests in procreation and child-rearing.”50

It is clear that the Justice Department’s brief, which was supposed to be filed in support
of the DOMA statute, in fact undercut the law’s constitutionality. As one legal scholar and
proponent of same-sex marriage said about the Justice Department’s argument:

                                                            
45
Confirmation Hearings on the Nominations of Thomas Perrelli Nominee to be Associate Attorney General of the
United States and Elena Kagan Nominee to be Solicitor General of the United States: Hearing Before the Senate
Comm. on the Judiciary, 111th Cong., 1st Sess. (Feb. 10, 2009) (S. Hrg. 111-361, Serial No. J-111-81), at 100
(statement of Elana Kagan).
46
Senate Judiciary Committee Holds Hearing on the Nomination of Solicitor General Elena Kagan to be an
Associate Justice of the U.S. Supreme Court, Day 3, CQ Cong. T. (June 30, 2010) (questions of Senator Grassley).
47
Response of Solicitor General Nominee Elena Kagan to Written Questions of Senator Sessions, 28 (Feb. 10,
2009) (on file with the Senate Judiciary Committee).
48
No. SACV09-00286 (D. Cal. 2009).
49
Reply Memorandum in Support Of Defendant United States of America's Motion to Dismiss, Case No. SAC V09-
00286 DOC (August 17, 2009), at 2.
50
Reply Memorandum in Support Of Defendant United States of America's Motion to Dismiss, Case No. SAC V09-
00286 DOC (August 17, 2009), at 6.

  ‐ 9 ‐
This new position is a gift to the gay-marriage movement, since it was not necessary to
support the government’s position. It will be cited by litigants in state and federal
litigation, and will no doubt make its way into judicial opinions. Indeed, some state court
decisions have relied very heavily on procreation and child-rearing rationales to reject
SSM [same-sex marriage] claims. The DOJ is helping knock out a leg from under the
opposition to gay marriage.51

The Smelt case was later dismissed by the district court for other reasons. And that
brings us to the second DOMA case in which Ms. Kagan was involved—Gill v. Office of
Personnel Management.52 In Gill, the Justice Department again offered the same half-hearted
defense of DOMA and repudiated its strongest legal arguments. This time, however, the district
court seized on the Justice Department’s rejection of the procreation and child-bearing rationales
and found that DOMA was unconstitutional. Ed Whelan, the noted legal commentator and a
former principal deputy of the Office of Legal Counsel, has explained that the decision in Gill
“would be ridiculous but for DOJ’s abandonment of Congress’s stated justifications for DOMA.
Under proper application of the very deferential ‘rational basis’ review, for example, it would be
enough to recognize that it would have been reasonable for Congress in 1996 to regard
traditional marriage as a valuable vehicle for encouraging responsible procreation and
childbearing.”53

Although Ms. Kagan admitted being involved in both Smelt and Gill, she refused to tell
us her role in the deliberations. In response to written questions, Ms. Kagan did admit that her
participation in Smelt was “sufficiently substantial” that she would recuse herself should the case
come before the Supreme Court.54 But this promise itself was disingenuous because the Smelt
case had already been dismissed, so there was no chance that it would come before the Supreme
Court. On the other hand, the Gill case may very well make its way to the Supreme Court, but
Ms. Kagan did not promise to recuse herself from participating in it, despite her involvement in
formulating the Justice Department’s flawed defense of DOMA in the case.55

We will likely never know what Ms. Kagan’s advice was in these cases. What we do
know is that Ms. Kagan has a history of ignoring the law when it conflicts with the gay rights
agenda. We also know that she took the unusual step of getting involved in these district court
cases challenging DOMA. And we know that the Justice Department went out of its way to
                                                            
51
Dale Carpenter, DOJ Boosts the Cause of SSM, The Volokh Conspiracy, August 17, 2009, http://volokh.com
/archives/archive_2009_08_16-2009_08_22.shtml#1250541892.
52
No. 09-10309-JLT (D. Mass. 2010).
53
Ed Whelan, The Massachusetts DOMA Rulings—Some Commentary on Gill v. OPM, National Review, July 9,
2010, at http://www.nationalreview.com/bench-memos/230892/massachusetts-doma-rulings-some-commentary-i-
gill-v-opm-i/ed-whelan.
54
Response of Solicitor General Nominee Elena Kagan to Written Questions of Senator Sessions, 27 (Feb. 10,
2009) (on file with the Senate Judiciary Committee).
55
Response of Solicitor General Nominee Elena Kagan to Written Questions of Senator Sessions, 27 (Feb. 10,
2009) (on file with the Senate Judiciary Committee).

  ‐ 10 ‐
abandon one of the fundamental rationales for the DOMA statute, which resulted in a court, for
the first time ever, ruling that DOMA was unconstitutional. On the basis of these facts, I believe
that any reasonable observer would question whether Ms. Kagan kept her promise to us that she
would “vigorously defend” federal statute as Solicitor General.

Exhibit I is her dubious explanation of why, in another case that she handled as Solicitor
General, she declined to appeal the Ninth Circuit’s adverse ruling in Witt v. Department of the
Air Force, a case challenging the constitutionality of the government’s Don’t Ask, Don’t Tell
statute.56 At her hearing, Ms. Kagan claimed that allowing the Ninth Circuit decision to stand,
and accepting a remand and trial in district court, would provide the Supreme Court with a
“fuller record” and would help the government “show what the Ninth Circuit was demanding
that the government do” to defend Don’t Ask, Don’t Tell.57
But a review of the Ninth Circuit opinion and the record in the case shows that Ms.
Kagan’s explanation was disingenuous. The Ninth Circuit itself had already said what the
government would need to prove for the federal law to survive—there was no need to develop a
“fuller record” or seek further clarification from the courts.
Ms. Kagan’s decision to let the case return to the district court ensured that members of
the military would be subjected to invasive and humiliating trials in the Witt case and in all other
challenges against Don’t Ask, Don’t Tell—trials in which soldiers would be compelled to testify
against their comrades, discuss their views of a fellow soldier’s sexual practices, and watch as
the unit’s personnel files become fodder for lawyers trying to condemn what is supposed to be a
military-wide policy. The government rightly argued before the trial court that such trials are
guaranteed to destroy unit cohesion—the very thing that Congress sought to protect when it
passed the Don’t Ask, Don’t Tell statute. And the trial court records show that Kagan knew in
advance that the trial process would harm the military’s interests. But she decided to thrust the
government into exactly the position the military’s lawyers most wanted to avoid, perhaps to
keep in place, and insulate from Supreme Court review, a Ninth Circuit ruling that places Don’t
Ask, Don’t Tell policy in jeopardy.
In addition to my concerns that Ms. Kagan was less than candid with the Judiciary
Committee, I am also concerned about her leftist ideology and the potential it will influence her
judging. I’ll discuss three areas of concern.
First, is her defense of the brief filed in Chamber of Commerce v. Candelaria.58 It takes a
clever lawyer to argue that the Court should take this immigration case, but not Lopez-Rodriguez
v. Holder59 based on the traditional reasons for granting certiorari. In Candelaria, she asked the
Supreme Court to strike down an Arizona law that permits the state to suspend or revoke the
                                                            
56
Witt v. Department of Air Force, 527 F.3d 806 (9th Cir. 2008).
57
Senate Judiciary Committee Holds Hearing on the Nomination of Solicitor General Elena Kagan to be an
Associate Justice of the U.S. Supreme Court, Day 3, CQ Cong. T. (June 30, 2010) (responding to Senator Sessions’
questions).
58
130 S. Ct. 534 (Nov. 2, 2009).
59
560 F.3d 1098 (2009).

  ‐ 11 ‐
business licenses of companies that knowingly employ illegal aliens.60 She did this even though
federal law expressly authorizes states to enforce immigration laws “through licensing”61 and
even though the courts that have considered the issue have determined that states could do
precisely what Arizona did.62 Yet, in Lopez-Rodriguez, another immigration case, she refused to
appeal a decision by the Ninth Circuit that permits ordinary deportation hearings to be bogged
down by long legal fights over the admissibility of clear evidence that a person is illegally here.
Unlike Candelaria, the Ninth Circuit’s decision in Lopez-Rodriguez was in conflict with the
decisions of other courts—including the Supreme Court63—and involved a significant
constitutional issue. It is difficult not to conclude that Ms. Kagan’s actions in these two cases
were driven less by the law, and more by political expediency.
My second concern about ideology is that Ms. Kagan has shown she may hold a limited
reading of the Second Amendment, even after the Heller and McDonald cases. When asked
whether the right to bear arms was a “fundamental right,” Ms. Kagan said, “I think that that’s
what the court held in McDonald.”64 She also said that the holding was “[g]ood precedent going
forward.”65 Of course, there is a record of nominees describing the holding of a case and
proclaiming that it is “good precedent,” only to vote to overturn or distinguish that precedent
once they ascend to the bench. Justice Sotomayor did just that on this issue.

But we need not rely on cynicism to demonstrate that Ms. Kagan may not view the recent
Second Amendment precedents as settling the question of whether gun ownership is a
“fundamental right.”

Generally speaking, when a constitutional right is “fundamental,” any government


restriction of that right is subject to “strict scrutiny” by the courts. But at her hearing, Ms. Kagan
left open the possibility that some other, lesser standard of scrutiny should apply to Second
Amendment restrictions. She said that “going forward the Supreme Court will need to decide
what level of constitutional scrutiny to apply to gun regulations.”66 This does not sound like a
                                                            
60
Brief for the United States as Amicus Curiae, 2010 WL 2190418 (May 28, 2010), at 10.
61
Unlawful Employment of Aliens Act, 8 U.S.C.A. § 1324(a).
62
Arizona Contractors Ass’n, Inc. v. Candelaria, 534 F. Supp. 2d 1036 (D. Ariz. 2008); Chicanos Por La Causa,
Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2009) (unanimously affirming).
63
INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).
64
Senate Judiciary Committee Holds Hearing on the Nomination of Solicitor General Elena Kagan to be an
Associate Justice of the U.S. Supreme Court, Day 3, CQ Cong. T. (June 30, 2010) (responding to Senator Grassley’s
questions).
65
Senate Judiciary Committee Holds Hearing on the Nomination of Solicitor General Elena Kagan to be an
Associate Justice of the U.S. Supreme Court, Day 3, CQ Cong. T. (June 30, 2010) (responding to Senator Grassley’s
questions).
66
Senate Judiciary Committee Holds Hearing on the Nomination of Solicitor General Elena Kagan to be an
Associate Justice of the U.S. Supreme Court, Day 3, CQ Cong. T. (June 30, 2010) (responding to Senator Feingold’s
questions).

  ‐ 12 ‐
commitment to the principle that the Second Amendment guarantees a fundamental right. When
weighed with her well-documented work in the Clinton Administration to advance gun control
legislation, I believe there is a justifiable concern that Ms. Kagan would vote to construe Heller
and McDonald as narrowly as possible.

Third, I am concerned that Ms. Kagan sees few, if any, limitations on Congress’s
authority to regulate behavior, or interstate commerce. In a remarkable exchange, Senator
Coburn asked Ms. Kagan whether it would be constitutional for Congress to pass a law requiring
Americans “to eat three vegetables and three fruits every day.”67 Although Ms. Kagan said that
such a law sounded “dumb,” she refused to say that such a law would be unconstitutional.68 In
fact, during the course of the exchange, Ms. Kagan repeatedly emphasized that a court analyzing
such a statute should “read the [commerce] clause broadly” and give “real deference” to
Congress.69

I agree that the Commerce Clause gives the Congress substantial authority, but it does not give
Congress unlimited authority. That Ms. Kagan was unwilling to say a law requiring the
consumption of produce is beyond Congress’s authority suggests she would vote to uphold
statutes that exceed the boundaries of the Commerce Clause. Stretching the Commerce Clause
gives too much power to Congress.

Finally, it is worth noting that Ms. Kagan came to the Senate with a lack of legal and
judicial experience, especially when compared to other recent nominees. Some have reached
back 40 years to compare Ms. Kagan’s experience to that of Chief Justice Rehnquist, the last
nominee without prior judicial experience confirmed to the Supreme Court (1972). William
Rehnquist, however, spent 16 years as a practicing litigator in my home state of Arizona and two
more years as Assistant Attorney General, Office of Legal Counsel, a position that was later held
by Justice Scalia (1974-1977) and that, according to the Department of Justice, “typically deal[s]
with legal issues of particular complexity” and “provides authoritative legal advice to the
President and all the Executive Branch agencies.”70 In contrast, Ms. Kagan’s law practice is
                                                            
67
Senate Judiciary Committee Holds Hearing on the Nomination of Solicitor General Elena Kagan to be an
Associate Justice of the U.S. Supreme Court, Day 3, CQ Cong. T. (June 30, 2010) (question of Senator Coburn).
68
Senate Judiciary Committee Holds Hearing on the Nomination of Solicitor General Elena Kagan to be an
Associate Justice of the U.S. Supreme Court, Day 3, CQ Cong. T. (June 30, 2010) (responding to Senator Coburn’s
questions).
69
Senate Judiciary Committee Holds Hearing on the Nomination of Solicitor General Elena Kagan to be an
Associate Justice of the U.S. Supreme Court, Day 3, CQ Cong. T. (June 30, 2010) (responding to Senator Coburn’s
questions).

70
http://www.justice.gov/olc/ (“By delegation from the Attorney General, the Assistant Attorney General in charge
of the Office of Legal Counsel provides authoritative legal advice to the President and all the Executive Branch
agencies. The Office drafts legal opinions of the Attorney General and also provides its own written opinions and
oral advice in response to requests from the Counsel to the President, the various agencies of the Executive Branch,
and offices within the Department. Such requests typically deal with legal issues of particular complexity and
importance or about which two or more agencies are in disagreement. The Office also is responsible for providing
legal advice to the Executive Branch on all constitutional questions and reviewing pending legislation for
constitutionality. All executive orders and proclamations proposed to be issued by the President are reviewed by the
  ‐ 13 ‐
confined to two years in private practice shortly after law school and one year as the Solicitor
General.

Her limited experience is not by itself disqualifying, but it did increase the importance of
her hearing. Had she answered questions in an honest and straightforward manner, we might
have a better basis to know what kind of judge she’d be. But instead, Ms. Kagan either dodged
questions or gave what were clearly disingenuous answers intended to mask her views. She also
failed to make the case that her political ideology would not influence her judging. For all of the
reasons I’ve discussed, I cannot support her nomination.
###

                                                                                                                                                                                                
Office of Legal Counsel for form and legality, as are various other matters that require the President's formal
approval. In addition to serving as, in effect, outside counsel for the other agencies of the Executive Branch, the
Office of Legal Counsel also functions as general counsel for the Department itself. It reviews all proposed orders
of the Attorney General and all regulations requiring the Attorney General's approval. It also performs a variety of
special assignments referred by the Attorney General or the Deputy Attorney General.”) (emphasis added).

  ‐ 14 ‐

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