Statement of Senator Feinstein at Senate Judiciary Committee Confirmation Hearing on Supreme Court Nominee Elena Kagan

Statement

U.S. Senator Dianne Feinstein (D-Calif.), offered opening remarks at today's Senate Judiciary Committee confirmation hearing of Supreme Court nominee Elena Kagan.

Following are Senator Feinstein's opening remarks:

"I would like to begin with a word about Senator Byrd. I served on the Appropriations Committee for 16 out of my 18 years in the Senate. Senator Byrd was the chairman. He was tough, he was strong, he cared. Many times the Constitution popped out of his vest pocket. He certainly was, I think in anyone's book, a titan in the Senate. And he has left an indelible imprint. He will be missed.

But today, it's welcome, Solicitor General Kagan.

Over the past few weeks there has been a drift net out trying to find some disqualifying factor in your record. But today, I don't believe any such factor has been found. I believe that you are eminently confirmable.

Your experience, I believe, makes you a very strong nominee for the Court.

You are the first woman Solicitor General of the United States, as such, the nation's top litigator before the Supreme Court.

And the Solicitor General is the only federal official required by statute to be "learned in the law." Of the 45 people who have held the job, five have gone on to the Supreme Court.

You have filed hundreds of briefs before the Supreme Court. You have successfully defended laws. And you have the support of nearly every living Solicitor General.

You were also the first woman Dean of Harvard Law School. There, you developed a reputation there as a leader who brought all sides to the table.

You are also a highly respected scholar of constitutional and administrative law, who published in the Harvard Law Review, the Chicago Law Review, and the Supreme Court Review.

You were a legal advisor to President Clinton, served as an Associate White House Counsel, as Deputy Director of the Domestic Policy Council and you covered some tough issues:

* Tobacco reform,
* Importation of rapid-fire assault weapons,
* Campaign finance,
* Women's health
* Abortion.

What comes across in reviewing your writings is that you were a valuable advisor -- smart, reasonable, highly respected, principled.

You also served as a Special Counsel to this Committee during the Ginsburg confirmation hearings.

The biggest criticism I have seen out there is that you have never been a judge.

Frankly, I find this refreshing. The Roberts Court is the first Supreme Court in history to be comprised entirely of former federal Court of Appeals judges.

Throughout the history of the Court, over one-third of the Justices (38 out of 111) have had no prior judicial experience. They include:

* Chief Justice William Rehnquist who was a law clerk for the Supreme Court, worked for a law firm, and then was an Assistant Attorney General in the Nixon Administration.
* They include: Chief Justice Earl Warren who returned from World War II to prosecute cases as an Assistant District Attorney before becoming California's Attorney General and Governor.
* And they include: Chief Justice Harlan Fiske Stone who was Dean of Columbia Law School and then Attorney General.

These Justices also had no prior judicial experience, but their backgrounds proved valuable nonetheless.

Judicial interpretation, I believe, is not a mechanical endeavor, like completing a math equation. The most powerful computer cannot tell us:

* Whether the President's powers as Commander-in-Chief allow him to exceed the bounds of the Foreign Intelligence Surveillance Act and other statutes in wartime;
* Nor can they tell us whether Congressional laws barring guns from the grounds of schools, or implementing new health insurance requirements are within Congress's Article I powers;
* Nor can they tell us what the Fourteenth Amendment's promise of "equal protection under the law" means for students in our public schools.

These questions are among our nation's most important, and it takes more than an umpire to find their answers.

In recent years, there has been a radical change on the Supreme Court which was on display even this morning.

This morning, I was extremely dismayed to learn of the Court's decision in McDonald v. City of Chicago, holding that common-sense state and local gun laws across the country now will be subject to federal lawsuits. This decision and its predecessor, District of Columbia v. Heller, have essentially disregarded the precedent of 71 years, embedded in United States v. Miller, a 1939 case.

I find that shocking as a former mayor. I believe the proliferation of guns have made this nation less safe, not more safe. We now have more guns than adults in this country. They are sold everywhere, on street corners, in gun shows with no restraint whatsoever. Any kind of weapon. They fall into the hands of juveniles, criminals and the mentally ill, virtually every day of the year.

And the Supreme Court has thrown aside seven decades of precedent to exacerbate this situation.

From the documents that have been revealed thus far, I am encouraged that Solicitor General Kagan holds stare decicis in high regard. We will see. She has shown determination to uphold the law, even when she may personally disagree with it. For example:

* At Harvard, she expressed strong disagreement with "Don't Ask, Don't Tell." But she allowed military recruitment to continue, and in fact, the number of recruits from the Law School did not diminish. I believe it increased. And as Solicitor General, she defended the policy's constitutionality, arguing in a brief that the Court should defer to Congress' judgment.

* During the Clinton Administration, she advised the Bureau of Alcohol, Tobacco, and Firearms that it could not ban importation of pre-1994 large capacity ammunition feeding devices by Executive Order. The Bureau of Alcohol, Tobacco, and Firearms and I both wanted to ban these imports, but she argued successfully that the law simply did not give the Bureau that authority.

Elena Kagan has written that the confirmation process should be a substantive one -- that "the kind of inquiry that would contribute most to understanding and evaluation of a nomination" would include "discussion first, of the nominee's broad judicial philosophy and, second, of her views on particular constitutional issues."

I agree, and I look forward to a meaningful discussion this week.

By all accounts, this nomination has been smooth so far. One newspaper even called it a "snooze-fest."

If it is, it is because Elena Kagan is unquestionably qualified. Over 170,000 documents have unmasked her as an even-handed legal scholar with a sterling reputation. Each new set of documents makes it clearer that her views fall within the moderate, mainstream legal thinking in this country. So at this stage, I see no impediment to confirmation. I hope the week ends the same way.

I look forward to proceeding."

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