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ELENA KAGAN, SUPREME COURT NOMINEE: That's an important thing.
SEN. JOHN KYL (R), ARIZONA: Yes. And I totally agree with you. It's not what Justice Marshall believed is important here. It's what you believe. What since you have written so glowingly about him, in fact, his vision of the court a thing of glory, I believe.
I'm having a hard time figuring out whether to the extent that you do and have written glowingly about him, whether you would tend to judge in cases more actively or more with interest in protecting the rights of those who are disadvantaged, for example, or as you have already expressed here, you would simply base it on the facts and the law and the Constitution.
KAGAN: The thing of glory, Senator Kyl, is that the court are open to all people and will listen respectfully and with attention to all claims. And at that point, the decision is what the law requires. And there may be differences as to what the law does require. But it's what the law requires. And that's what's -- what matters. I guess I would like to go back to -- I'll just give you one case, just to make sure --
KYL: Well, can I just keep moving on? I know the time -- well, we don't have a lot of time. If I could, please. Do you agree with the characterization by some of my colleagues that current court is too activist in supporting the position of corporations in big business?
KAGAN: Senator Kyl, I would not want to characterize the current court in any way. I hope one day to join it.
KYL: And they said you're not political, right? I appreciate it. Let me explore your judicial philosophy just a little bit more here. Whether you agree with the comment that Justice Marshall said, he said you do what you think is right, and then let the law catch up. Do you agree that that's the right way to approach judging?
KAGAN: The way I would judge is the way I told you, that you make sure that you give very respectful consideration to every person, and then determine what you think the Constitution or a statute, if the case is a statutory case, requires.
KYL: So you wouldn't have phrased your philosophy as Justice Marshall phrased is?
You know, I actually never heard Justice Marshall say that. I know another clerk in a different year wrote that she did. I will say, Justice Marshall was a man who spent many decades of his life fighting for the eradication of Jim Crow's segregation, and you can kind of see why he thought that you should work as hard as you can and eventually the law will catch up. And eventually the law did catch up in Brown v. Board of Education.
KYL: That's why it didn't seem to me to be out of character for him to have said that. Is there anything that you have written? Obviously, you haven't rendered decisions which would enable us to verify that this is your approach to judging. Can you think of anything you've written or if you would like to just supply this for the record if it doesn't come to you immediately, that would verify what you have said for us here, that would help us to confirm that what you have expressed to us today is, in fact, a view that you have expressed about judging?
KAGAN: Well, I don't think I've written anything about judging in that way. But I think that you can look to my life, that you can look to the way I interact with people. I mean, my deanship was a good example. The way I have acted as solicitor general, as well. The kind of consideration that I've given to different arguments. The kind of fairness that I've shown in making decisions. I think that those would all be, you know, appropriate things to look to, to try to get some understanding of this aspect of me. KYL: OK. Let me ask about some of the bench memos. I talked to you a little bit about that when you were in my office, as well. And obviously, we only have time to mention a few. But what I was suggesting is that your advice to your boss seemed to be not just pragmatic, but almost political in advising him either to -- to vote to take a case or not to take a case on Cert, for example, in Lonzaro v. Monmouth County. You write, quite honestly, I think although all of the lower court's decisions, is well intended, parts of it are ludicrous.
But you discouraged Justice Marshall from voting to go review the decision, because you were afraid that the court, and I'm quoting now, "might create some very bad law on abortion and/or prisoners' rights." Now, when deciding whether or not to take a case, shouldn't the focus be on whether the appellate or the appellate has the facts on their side, as opposed to whether justices, might in your view, make bad law?
KAGAN: Senator Kyl, let me step back a little bit and talk about what clerks did for Justice Marshall. We wrote -- Justice Marshall was not in what's called the Cert pool. We wrote probably thousands of memos over the course of a year about what cases the court should take and what cases the court should not take.
And when I was clerking for Justice Marshall, I was 27 years old, and Justice Marshall was an 80-year-old icon, a lion of the law. He had had firm views, he had strong views, he knew what he thought about a great many legal questions. He had been a judge for some fair amount of time. And the role of the clerks was pretty much to channel Justice Marshall.
To try to figure out whether Justice Marshall would want to take a case. Whether Justice Marshall would think that the case was an appropriate one for the court to take and to decide. And that's what I did, and I think that's what my co clerk's did, as well.
KYL: Well, do you think you would approach certain decisions that way if you were on the court?
KAGAN: I think that the most important factors in the Cert decision process, which is one I think I talked to Senator Cole about, maybe, are the ones I gave. First, most importantly, are the question of circuit conflicts that the court -- it's a very important responsibility of the court's to make sure that our law is uniform, and to resolve any conflicts that appear among the circuit courts.
Second, is the court should be available almost all the time, where a judicial decision invalidates a congressional statute that Congress is entitled to that kind of respect, to have the Supreme Court hear the case before a congressional statute is invalidated.
Third, you know, for some set of extremely important national interests. Extremely important for any number of reasons, it's a small category of cases, but it's an important one. And I think that those would be the considerations that I would primarily use, and those would -- that is the way I would make decisions. KYL: All right. There are -- some of these bench memos suggest other bases for making decisions. For example, in Cooper v. Kotarski -- and in assessing whether the court should take the case, you wrote, quote, it's even possible that the good guys might win on this issue. Now, that wouldn't be a very good basis on which to suggest taking a case, would it? And you were the good guys.
KAGAN: As I took a look at that memo, Senator Kyl, that was just a reference to the people whom I thought Justice Marshall would favor on the law. And that's all the reference was meant to suggest. Just the people whom I thought Justice Marshall would think had the better of the legal arguments.
KYL: Well, the reason I cited that one is there is a note while you were at the White House, you were asked whether certain -- or you asked a colleague, rather, whether certain organizations were on a list of organizations eligible for certain tax deductions. And is you referred to two of them.
One was the NRA. The other was the KKK. And you referred to them as, quote, bad guy orgs, I presume an abbreviation for organizations. So if you're presented a case involving, for example, the NRA, would you consider the NRA to be a bad guy org Deserving of defeat in the case?
KAGAN: Senator Kyl, I'm sure that that was not my reference. The notes that you're referring to are notes on a telephone call. Basically me jotting down things that were said to me. And I don't remember that conversation at all. But just the way I wrote telephone notes is not to quote myself.
KYL: OK. So you're -- your belief is that you were quoting someone else when you wrote --
KAGAN: Or paraphrasing somebody else. It was just telephone notes.
KYL: And it wasn't your terminology, it was somebody else's.
KAGAN: Or, as I said, a paraphrase. But it was -- you know, the way I write telephone notes is just to write down what I'm hearing.
KYL: You wouldn't in any event put the NRA in the same category as the KKK, I gather.
KAGAN: It would be a ludicrous comparison.
KYL: Thank you. In another case. In recommending the -- this is United States v. Kominski, in recommending the grant of Cert, and you noted that the solicitor general was, quote, for once on the side of the angels. Now, obviously, it's not whose side you're on.
KAGAN: I hope that's not my good friend, Charles free --
KYL: It is and was. How do you define who is on the side of the angels? KAGAN: You know, I didn't -- I have not seen that memo, Senator Kyl but I'm sure it was -- it was saying essentially the same thing, which was the solicitor general had the better of the legal arguments as Justice Marshall would understand.
KYL: For once. You said --
KAGAN: I'm sorry, Charles.
KYL: Well, have you -- in your time as SG, have you made any litigation decisions based on assessment of which position was side of the angels?
KAGAN: I have tried very hard, Senator Kyl, to take the cases and to make the decisions that are in the interests of my client, which is the United States government.
KYL: And it wouldn't be appropriate as a member of the Supreme Court to decide cases based on that either.
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