05.19.10

Kagan Confirmation Hearing To Begin June 28

WASHINGTON – At a hearing Wednesday morning, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) announced that proceedings to consider the nomination of Solicitor General Elena Kagan to be an Associate Justice of the U.S. Supreme Court will begin on June 28.

“This is a reasonable schedule that is in line with past practice,” said Leahy.  “Last year, we proceeded with the hearing on the nomination of Justice Sotomayor 48 days after she was designated.  Senate Republicans said that hearing was fair, and was conducted fairly.  This year, I am scheduling the hearing to start 49 days after the nomination was announced.”

Leahy has outlined a confirmation schedule that mirrors the timelines followed for recent nominations, including the confirmation of Chief Justice Roberts and Justice Sonia Sotomayor.  Both were confirmed 72 days after each nomination was announced.  Chief Justice Roberts’ confirmation hearing was originally set to begin 49 days after President Bush announced his nomination, and was delayed just one week in the aftermath of Hurricane Katrina, the passing of Chief Justice Rehnquist, and Roberts’ subsequent re-nomination to be the Chief Justice.  Justice Sotomayor’s confirmation hearing began 48 days after her nomination was announced by President Obama.

During the Committee’s consideration in 2005 of the Roberts’ nomination, Senate Democrats agreed to waive the right to hold over for one week a Committee vote on the nomination.  Only then did Senate Republicans abandoned their effort to hold the confirmation hearing just six weeks, or 42 days, after the nomination was announced, and instead scheduled the hearing for 49 days after the designation.  No similar agreement was made by Senate Republicans in connection with the Sotomayor nomination, nor has a similar agreement been made in connection with the Kagan nomination.

“There is no reason to unduly delay consideration of this nomination,” Leahy said.  “Justice Stevens announced on April 9 that he would be leaving the Court.  He noted that ‘it would be in the best interests of the Court to have [his] successor appointed and confirmed well in advance of the commencement of the Court’s next Term,’ and I wholeheartedly agree with Justice Stevens.  That is in the best interests of the Court, and the country.” 

Last week, the Leahy and the Committee’s ranking Republican, Jeff Sessions, released the bipartisan questionnaire, and Solicitor General Kagan returned her responses to the questionnaire on Tuesday.  Those materials are available online.

Further details about the hearing, including information about how the public and members of the press will be able to attend the proceedings, will be released in the coming weeks.

Leahy’s full statement, as prepared, follows.

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Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
Regarding The Nomination Of Solicitor General Elena Kagan
To Be Associate Justice On The U.S. Supreme Court
May 19, 2009

Today, I am announcing that the Senate Judiciary Committee will hold the confirmation hearing on the nomination of Solicitor General Elena Kagan to be Associate Justice on the United States Supreme Court beginning on June 28, so that the hearing may conclude before the July recess.

I have reached out to Senator Sessions, the Committee’s Ranking Republican, to discuss the scheduling of this hearing, and we were able to meet yesterday.  We worked cooperatively to send a bipartisan questionnaire to the nominee last week.  We received the response yesterday.  Yesterday, we also joined in sending a letter to the Clinton Library asking for files from the nominee’s work in the White House during the Clinton administration.  I will continue to consult with Senator Sessions to ensure that we hold a fair hearing. 

This is a reasonable schedule that is in line with past practice.  Last year, we proceeded with the hearing on the nomination of Justice Sotomayor 48 days after she was designated.  Senate Republicans said that hearing was fair, and was conducted fairly.   This year, I am scheduling the hearing to start 49 days after the nomination was announced.

There is no reason to unduly delay consideration of this nomination.  Justice Stevens announced on April 9 that he would be leaving the Court.  He noted that “it would be in the best interests of the Court to have [his] successor appointed and confirmed well in advance of the commencement of the Court’s next Term,” and I wholeheartedly agree with Justice Stevens.  That is in the best interests of the Court, and the country. 

One of the Republican criticisms of this nomination is that she has not been a judge and does not have years of opinions to be considered.  That should make Senators’ preparation for the hearing less labor intensive than that for Justice Sotomayor.  In addition, we considered her record just last year when the Senate, by a bipartisan majority vote, confirmed her nomination to serve as the Solicitor General of the United States, a position often called the “Tenth Justice.” 

This last weekend, Republican Senators said that Solicitor General Kagan’s answers at the hearing were going to be the key.  If that is true, and if they will approach the hearing with open minds and listen to her answers to those questions, we should not needlessly delay her opportunity to respond.

One purpose of the hearing is to afford the American people the opportunity to see and hear from the nominee, consider her thoughtfulness and evaluate her character.   The hearing is also the opportunity for all Senators on the Judiciary Committee, both Republicans and Democrats, to ask questions, raise concerns and evaluate the nomination.  Republican Senators say that they want to ask Solicitor General Kagan about her actions as the Dean of Harvard Law School and about her judicial philosophy.  It does not take two months to prepare to ask those questions.  They have already raised them.  They will surely be prepared to ask them by late June.  This is a schedule that I think is both fair and adequate – fair to the nominee and adequate for us to prepare for the hearing and Senate consideration. 

President Obama handled the selection process with the care that the American people expect and deserve, and met with Senators from both sides of the aisle.  I suggested that he nominate someone outside the judicial monastery, whose experiences were not limited to those in the rarified air of the Federal appellate courts.  The Supreme Court’s decisions have a fundamental impact on Americans’ everyday lives.  One need look no further than the Lilly Ledbetter and Diana Levine cases to understand how just one vote can determine the Court’s decision and impact the lives and freedoms of countless Americans.   One need look no further than the Citizens United decision to know that the decisions of the Supreme Court can drown out the voices of individual Americans in favor of wealthy corporate interests.   I believe that Solicitor General Kagan understands that our courthouse doors must remain open to hardworking Americans.  

President Obama is to be commended for having consulted with Senators from both sides of the aisle.  Now the Senate must fulfill its responsibility. The nominee has returned the Judiciary Committee questionnaire and will be completing her meetings with Senators on the Judiciary Committee very soon.  I hope that all Senators now will work with me to move forward to consider this nomination in a fair and timely manner.

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