U.S. Senate Republican Whip Jon Kyl, a member of the Senate Judiciary Committee, today announced he will oppose the nomination of Elena Kagan to become an Associate Justice of the Supreme Court of the United States. Kyl delivered the following remarks Tuesday at a meeting of the Senate Judiciary Committee:
"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, she did not testify meaningfully before the Judiciary Committee. She played 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, many expected her to set a different standard. Others have asked whether our hearings have been rendered largely meaningless and what, if anything, can be done about it. Former Chairman of the Committee 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.'
"I confess that, like Senator Specter, I don't know how we can force nominees to be forthcoming except through our votes.
"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 Committee. Obviously, reaching such a conclusion precludes support, notwithstanding other qualifications for the position.
"Reluctantly, 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. 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.
"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. 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. Her attempt to define his 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 she 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 her attempt to redefine her views in the letter sent to this Committee on November 14, 2005 objecting to the Graham-Kyl-Cornyn amendment dealing with treatment of enemy detainees. Her characterization of our approach as being similar to the "fundamentally lawless' actions of "dictatorships' 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,' 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') 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') 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 D is her dubious explanation of why, 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. 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' in order to defend Don't Ask, Don't Tell.
"But a review of the Ninth Circuit opinion and the record in the case shows that Ms. Kagan's explanation was entirely hollow. 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 simply ensured that the military would be subjected to invasive trials in the Witt case and in all other challenges against "Don't Ask, Don't Tell" -- trials where soldiers would be compelled to testify against their comrades, to discuss their views of a fellow soldier's sexual practices, and to watch as the unit's personnel files become fodder for lawyers trying to condemn what is supposed to be a uniform, 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 in order to keep in place, and insulate from Supreme Court review, a Ninth Circuit ruling that places the Don't Ask, Don't Tell policy in grave jeopardy.
"Exhibit E is her defense of the brief filed in Chamber of Commerce v. Candelaria. The position here is less disingenuous than political. But it takes a very clever lawyer to argue that the Court should take this immigration case, but not Lopez-Rodriguez v. Holder 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 business licenses of companies that knowingly employ illegal aliens. She did this even though federal law expressly authorizes states to enforce immigration laws "through licensing' and even though the courts that have considered the issue have determined that states could do precisely what Arizona did. 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 Court --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.
"Exhibit F is the explanation of several of her bench memos to Justice Marshall insisting that they were not her views, but only a "channeling' of his. Ms. Kagan offered this explanation for a memo categorizing litigants as "good guys' and "bad guys,' a memo stating that the government was "for once on the side of the angels,' and a memo expressing fear that the Court might "create some very bad law on abortion and/or prisoners' rights.' In memo after memo, 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.
"Exhibit G is her conflicting testimony 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 very simple and direct question about her personal views: "Do you believe that there is a federal constitutional right to same-sex marriage?' Her answer then was, or at least appeared to be, unmistakably clear. She wrote, "There is no federal constitutional right to same-sex marriage.' But, at the hearing, when I asked Ms. Kagan to confirm her views on this subject, she distorted both the previous question she was asked and her answer to it. She told me that Senator Cornyn had merely asked whether she could "perform the role of the Solicitor General' in vigorously defending DOMA, given her opposition to Don't Ask, Don't Tell. 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'--was merely conveying that she "understood the state of the law and . . . accepted the state of the law.' Having clarified that her previous answer could not be taken at face value, she then told me that, as a Supreme Court nominee, it would now not be "appropriate' for her to truly tell us her personal views on the subject, since such a case may come before the Court. My strong sense is 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.
"I am troubled by other matters. Her seeming lack of interest in how the Federalist Papers and other founding documents might inform constitutional interpretation today, her apparent belief that the Commerce Clause allows virtually unlimited federal regulation (assuming some economic nexus, however small), her suggestion that the right to own a gun might not be "fundamental' even after the Heller and McDonald cases, and her troubling approach to free speech issues (seen most clearly in the way she argued Citizens United) suggest that Ms. Kagan will be a judge who will let her policy preferences influence her legal judgments.
"For all of the reasons I've discussed, I cannot support her nomination."