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Dr. Coburn Asks Elena Kagan To Define Her Personal View Of The Constitution And Asks, "Do You Believe There Are Inalienable Rights?"

Interview

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Location: Washington, DC

Dr. Coburn Asks Elena Kagan To Define Her Personal View Of The Constitution And Asks, "Do You Believe There Are Inalienable Rights?"

Dr. Coburn questions SCOTUS nominee Elena Kagan about her view of Constitutional issues such as property rights and the Second Amendment, in the Judiciary Committee's third day of hearings.

Hearing transcript:

COBURN:

Thank you.

Well, here we go. I was just wondering, yesterday you asked a question about -- you were asked a question about whether you wrote a letter of recommendation for Miguel Estrada and you said you did not because he didn't ask you to. Did anybody -- either you or anybody on your behalf ask him to write the letter of recommendation for you?

KAGAN:

I don't know, Senator Coburn.

COBURN:

Good question. Do you believe he should have been confirmed?

KAGAN:

I -- I said that he is a great lawyer and a great human being, and I think I was asked whether he...

COBURN:

I'm asking you whether or not you believe he should have been confirmed.

KAGAN:

I wasn't trying to avoid your question. I think he'd be a great judge.

COBURN:

So your answer is yes?

KAGAN:

Yes.

COBURN:

And if you were sitting up here, you would have voted for him. Is that correct?

KAGAN:

I would have.

COBURN:

Thank you. Moving on...

KAGAN:

I hope I would have anyway. You know, who knows what it feels like to be one of you guys and to -- to be subject to all the things that you guys are subject to.

COBURN:

I want to give you a big secret. It's not all that much fun.

(LAUGHTER)

I have to reply to my colleague from Rhode Island. I gave a speech two or three weeks ago on the Senate floor talking about hearings. We didn't always have hearings. They're a relatively new phenomenon in the history of our country. You know, we had two areas of very distinct testimony about Judge Sotomayor, which she has demonstrated she did not live up to in the two most recent cases of the Supreme Court.

So, you know, the question really comes is confidence in our country today. We have problems with confidence in our economy, confidence in our government, confidence in Congress. And I was wondering, Judge Kagan, is it important to you that the Supreme Court is seen in a light of confidence by the American people -- not us, but by the American people?

KAGAN:

Senator Coburn, it's an interesting question because, of course, you want everybody -- every -- you want every -- you want the nation's citizenry to have confidence in each institution of government. But on the other hand, I think it would be wrong for a court to decide an individual case by asking itself...

COBURN:

Well, I'm not -- I'm not implying that. I'm not saying you make a decision based on whether you're going to have confidence. I'm saying, in general, is it important to you, if you are a justice, that the American people have confidence in the institution of the Supreme Court?

KAGAN:

I think that the welfare of the country is certainly best served if the American people have confidence in the Supreme Court, as is true of the other branches of government as well.

COBURN:

Right, right. Do you have any empathy with those of us that feel there's a low confidence right now in the institutions of government?

KAGAN:

Senator Coburn, I -- I think it would be better for the country if people had greater confidence than they do in all of the institutions of government. And that's -- that's not to say, you know -- it's hard to know how these things work out over time. And -- but, you know, it's -- the country is well served when people have confidence in the institutions that lead them.

COBURN:

And -- and would you agree with me that the glue that really binds us together is the glue that we, in fact, embrace the rule of law, that there's blind justice, and that's our goal? We're not perfect in it, but that's our goal at every point, at every opening, is that we can make that available as best we can at every opportunity. That's a glue that binds us together, is it not?

KAGAN:

I believe that thoroughly. When I gave my opening statement, I said that the blessings of liberty, which is the phrase that our Constitution uses, the blessings of liberty are rooted in the rule of law.

COBURN Yes, well, I wonder if you've ever thought of it as I have. I'm 12 or 13 years older than you. But one of the things that I...

(CROSSTALK)

KAGAN:

Maybe not after this hearing.

(LAUGHTER)

COBURN:

No, I'm sure I'm older. Actually, you're doing quite well. Have you ever contemplated the idea of what your freedom was like 30 years ago and what it is today?

KAGAN:

How old was I 30 years ago?

COBURN:

You were 20.

KAGAN:

I'm not sure I have ever contemplated that exactly.

COBURN:

Well, I want to tell you a lot of Americans have, and I certainly have. There's a marked change in this country from when I was 20 and now that I'm 62. And one of the problems with confidence, and the reason I asked you the question, is a lot of Americans are losing confidence because they're losing freedom. They're losing liberty.

Do you recall I asked you about the vegetable question yesterday. That's on the front of a lot of people's minds, not vegetables, health care. You know where I was going. The very fact that the government is going to have the ability to take away, mandate what I must buy or must not buy -- a very large loss of freedom.

COBURN:

And so my basic question comes back to you is, is that important, that the -- the fact that confidence in all government institutions is at an all-time low in this country? And should we be concerned about it? And should we be trying to right the ship so that we restore that confidence?

And I'm not talking in specific rulings. But you would agree that we ought to be trying to build that confidence and to reassure the American public that we actually get it, that we understand the Constitution is the founding document.

You've testified many times. I have some problems with some of what you said, but that's the bedrock instrument under which we have.

But with a perceived loss of liberty, confidence is declining. And then on top of that, as we discussed yesterday, the commerce clause and this very expansive view of it as held by the Supreme Court, which is counter to what our founders wrote, there's nobody that -- it started in 1937. It's counter to what our founders wrote. And as it has expanded, liberty has declined. And we've seen that rapidly increase.

And it's not just Republican or Democratic institutions -- administrations -- that have overseen that. They've both been guilty.

So I just wanted to -- whether you'd ever contemplated that. Because I think that can give you some insight into what America is concerned about.

I don't think judges just go to the bench and look at the Constitution. I think they have to look at the fact of how do we continue this wonderful and grand experiment and that there are consequences to their actions, whether it be the consequences of the senator from Rhode Island seeing a conspiracy and sinister, and people who think about and believe in the original intent, believe in expanded freedom, not limiting freedom, and believe that what the founders had to say in the Federalist Papers and interpreting the Constitution was of any import.

So you've never contemplated any change in the freedom that you've experienced?

KAGAN:

Senator, I guess I'll say this to what you said, which is that I believe that confidence in our institutions is terribly important. The confidence in the Supreme Court is terribly important.

I do think that the job of a Supreme Court justice is to decide cases. And -- and in deciding cases, it's not to think about big questions like restoring American confidence, that that's more a question and -- that belongs to the members of -- of -- of this body.

I do think that the job of a Supreme Court justice is to listen very carefully to all arguments that are presented. And that means all arguments. And that's what I've pledged to do and that's what I will do if I'm...

COBURN:

You said earlier to Senator Klobuchar this morning that people get to make fundamental decisions about this country. You know what? A large percentage of people in America today don't believe that. They don't believe they're getting to make decisions about this country.

I mean, that is a serious problem when 22 percent of the people in this country have confidence in Congress. And that's just speaking about Congress. I haven't seen a poll on the Supreme Court.

So the question -- that's the ideal, is we do want the people to be able to make the decisions. The fact is, is they're not today. There's a disconnect.

And it's seen -- that's why we see the unrest, the tension that's out there in the electorate, is that we're not paying attention. And that's why I was so hard and insistent on original intent, because they're like me, they're not lawyers. They read the Constitution and they see the words and they're not sophisticated. They didn't go -- most didn't go to Harvard. And they say, you know, here's the fact and here's the statement, and the fact doesn't match the statement.

And I'm just saying when it -- when it's a sliver dividing line one way or the other, if the Supreme Court isn't paying attention to that on an individual case when it can go either way, it ought to go for freedom, not more government, not bigger government, not an expanded commerce clause. It ought to go for individual freedom, individual liberty, when it's on the narrow.

I'm not talking about major cases that you can easily see plainly, because you're going to have a lot of cases that are going to be tough for you to decide. You would agree with that, correct? It's going to be difficult.

KAGAN:

Senator Coburn, I think that there are difficult cases that come to the court, no question.

COBURN:

The other thing that you said to Senator Kaufman this morning, you were quoting Holmes again on the commerce clause, is that the judges aren't principal players in that game. That was one of your quotes back to him.

And I just have to relate to you again my concern as I read the Constitution and I read what the founders wrote about the commerce clause -- I mean, they even said we were going to try to expand it and we were going to -- I mean, they actually quoted that we would try to abuse what they meant and they said that's not what we meant. And yet we still have this tremendous expansion of the federal government, and with it, a concomitant loss of individual freedom.

And so I have to tell you, my hair has grayed a little bit the last two days because of your position or lack of emphasis on original intent. I think it's valuable.

I have one other question in regard to the same thing. Senator Grassley quoted to you out of President Obama's book about property rights. And you gave an appropriate, good answer.

The question I would have to you is one of the concerns that Americans have today. I talked about, I think, our rule of law is what binds us together. No matter where you come from, what your wealth status is, the fact is in this country like no other you have a better shot at getting to the court of law and a fair outcome than anywhere in the world.

But some of the things we're doing, which the Supreme Court should weigh in on -- and he talked about property rights, including abrogation of contract rights to bond holders in a government-managed takeover of an auto company. I mean, it's a total violation of contract law that bond holders don't have a right. When they should be first, they're placed last.

When we ignore the idea that the problem with illegal immigration isn't illegal immigration, it's the very fact that somebody is violating a law, and then with amnesty towards that it's seen as tearing apart the glue that holds us together. Or the proposed recommendation of cram down on mortgages where Congress would pass a bill that said mortgage contract's out and we're going to tell you what your contract is.

Do you see my concern on property rights in that regard and also the fact that we're kind of abandoning contract law as well as tort law? And this is Congress. I'm not talking about the court.

KAGAN:

Senator Coburn, I think when you say it's Congress, I think that's right, that some of the things you just talked about are policy issues that are appropriately addressed, debated, argued about by Congress. That, of course, decisions get to the court in a different way. They get to the court in the form of individual cases and controversies.

And the only way that a judge can legitimately approach and decide issues is through that forum by looking at, you know, the actual circumstances of a case, the actual facts, the record, and trying to apply the -- the law as best one can.

So it might be that some of these bigger issues that take place in Congress about the appropriate direction of the country, you know, in some way inform or are seen in individual cases or controversies, but that's the only way that the court can look at them, not as these big abstract questions, but just...

COBURN:

I'm not asking you to do that. I'm just trying to get a feel for your appreciation of where we are today in this country.

Some of my colleagues may disagree, but I'm traveling all over this country today and I see something I've never seen in my 62 years of life: an absolute fear that we're losing it, that our institutions are failing us, that we're ignoring the basic document that combines us and puts us together, and that with the abandonment of that, we're liable to lose a whole lot more than just our short-term gains and income.

And it's a real problem. And it's what -- you know, the fact is, is today our kids' future has been mortgaged, and the confidence that we can get out of that is waning, and that we need to build that back up.

So, you know, it's just a plea for you to look at as you become a justice, if you do, that it's not just a -- the Constitution, it's what was the Constitution intended to be.

COBURN:

It's my appeal for you to go back and look at the Federalist Papers and what are -- I -- I thought they had tremendous wisdom.

They weren't -- they didn't get it all right, but they sure got a lot of it right, and the proof's in the pudding of where we are today. Let me move.

KAGAN:

Senator Coburn, I -- I said in my opening statement that I was only going to make a single pledge, and that was the pledge that I made in my opening statement, but I'll meet you another. I'll re- read the Federalist Papers.

COBURN:

Thank you. I'd appreciate that.

KAGAN:

It's a great document.

COBURN:

America will appreciate that.

I want to go to you to the Second -- Second Amendment for a minute, if I can. One of the things that we found in -- in some of the papers as we looked, and you know we've looked at thousands of them, and there's no way you're going to be able to recall all of them, although I'm sure you looked at some of them.

You -- you chose a phrase when talking about the Second Amendment that you were not sympathetic when discussing someone's claim that D.C.'s handgun ban violated their fundamental, pre-existing right to bear arms. And I have a very specific question for you. Do you believe it is a fundamental, pre-existing right to have an arm to defend yourself?

KAGAN:

Senator Coburn, I very much appreciate how deeply important the right to bear arms is to millions and millions of Americans. And I accept Heller, which made clear that the Second Amendment conferred that right upon individuals, and not simply collectively.

COBURN:

I'm not asking you about your judicial. I'm asking you, Elena Kagan, do you personally believe there is a fundamental right in this area? Do you agree with Blackstone that the natural right of resistance and self-preservation, the right of having and using arms for self-preservation and defense? He didn't -- he didn't say that was a constitutional right. He said that's a natural right. And what I'm asking you is do -- do you agree with that?

KAGAN:

Senator Coburn, to be honest with you, I --I don't have a view of what are natural rights independent of the Constitution, and my job as a justice will be to enforce and defend the Constitution and other laws of the United States.

COBURN:

So -- so you wouldn't embrace what the Declaration of Independence says, that we have certain God-given, inalienable rights that aren't given in the Constitution, that they're ours, ours alone, and that the government doesn't give those to us?

KAGAN:

Senator Coburn, I believe that the Constitution is an extraordinary document, and I'm not saying I do not believe that there are rights pre-existing the Constitution and the laws, but my job as a justice is to enforce the Constitution and the laws.

COBURN:

Well, I understand that. Well, I'm not talking about as a justice. I'm talking about Elena Kagan. What do you believe? Are there inalienable rights for us? Do you believe that?

KAGAN:

Senator Coburn, I -- I think that the question of what I believe as to what people's rights are outside the Constitution and the laws, that you should not want me to act in any way on the basis of such a belief, if I had one or...

COBURN:

I -- I would want you to always act on the basis of a belief of what our Declaration of Independence says.

KAGAN:

I -- I think you should want me to act on the basis of law, and -- and that is what I have upheld to do, if I'm fortunate enough to be concerned -- to be confirmed, is to act on the basis of haw, which is the Constitutions and the statutes of the United States.

COBURN:

Going back to the Second Amendment, what we know with the two most recent cases is that they didn't necessarily take away the precedent in the Miller, does it?

KAGAN:

I'm sorry?

COBURN:

They don't necessarily take away the precedent of Miller.

KAGAN:

As -- as I've not read McDonald yet, because of these hearings, but if I understand Heller correctly, Heller -- Heller did not find it necessary to reverse Miller.

COBURN:

Right.

KAGAN:

Heller distinguished Miller, involving a different kind of weapon.

COBURN:

So -- but when you say...

LEAHY:

The senator's time has expired.

COBURN:

We are going to have another round?

LEAHY:

Others have asked for it. I...

COBURN:

I've got several more questions, Mr. Chairman.

LEAHY:

Then we'll give -- well, with all due respect to the senator, if they're questions, fine. If they're 10, 15-minute speeches, your personal beliefs, which I know you hold strongly, are fine, but I'd prefer questions. I will be willing to give you another five minutes when your turn comes back.


Permalink: http://coburn.senate.gov/public/index.cfm/2010/6/dr-coburn-asks-elena-kagan-to-define-her-personal-view-of-the-constitution-and-asks-do-you-believe-there-are-inalienable-rights


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