03.19.09

Statement On The Nomination Of Elena Kagan To Be Solicitor General Of The United States

In the course of the Senate’s debate on the nomination of Elena Kagan to be Solicitor General of the United States, Republican Senators have wrongly suggested that Dean Kagan has not been forthcoming and responsive to questions from the Members of this Committee. They say she has not provided sufficient information to evaluate her nomination. This suggestion is wrong. It applies a double standard to Dean Kagan’s historic nomination that the Republicans did not apply when supporting President Bush’s nominations to the same post.

With so many critical matters before the Senate, it is disappointing that the Republican Senate minority has insisted on six hours of debate on a qualified nominee who has bipartisan support. Democrats did not require floor time to debate the nominations of President Bush’s last two Solicitors General, Paul Clement and Greg Garre, who were both confirmed by voice vote. 

Indeed, even the highly-controversial nomination of Ted Olson to be Solicitor General in early 2001, following his role in the Florida recount and years of involvement in partisan political activity, was limited to less time. He was eventually confirmed by a narrow margin, 51 to 47. With that one exception, every Solicitor General nomination dating back a quarter century has been confirmed by voice vote with little or no debate. 

The Olson nomination was one where there were concerns not only about whether Mr. Olson could leave behind his sharply partisan activities, but also about whether he was candid in testimony and answers to the Committee about his personal partisan activities.  

Democratic Senators on the Committee asked Mr. Olson questions about his involvement with the partisan attacks of the American Spectator and the Arkansas Project on President Clinton.

Rather than respond directly about his connection with those matters, Mr. Olson chose to respond by misdirection, and say what he did not do. He initially characterized his role as a member of the board of directors of the American Spectator Educational Foundation as extremely limited. He implied that he was involved only after the fact, when that board conducted a financial audit and terminated the Arkansas Project activities in 1998.   Over time and after a bipartisan inquiry, Mr. Olson’s answers shifted, and his recollections changed. He conceded additional knowledge and involvement and expanded his initial response to admit that he and his firm provided legal services in connection with the matter, that he had discussions in social settings with those working on Arkansas Project matters, and that he himself authored articles for the magazine paid for out of Scaife's special Arkansas Project.

These were not questions about personal views. The principal question raised by the nomination of Mr. Olson to be Solicitor General -- a position that is supposed to be nonpolitical, nonpartisan, representing all Americans of whatever political allegiance they have, or whether they have none—were whether he could check his partisan political instincts at the door to the Office of the Solicitor General. Mr. Olsen’s significant involvement with so many far-reaching anti-Clinton efforts, and his attempts to obfuscate and minimize those efforts before the Committee are what troubled so many of us.

There are no similar questions about Dean Kagan or her record. Some Senators have questioned positions she has taken, or personal views she has held, but these were not actions of a partisan, or things she kept from the Committee’s consideration. Indeed, in the time since her nomination to the D.C. Circuit was pocket filibustered by Republican Senators, she became the first woman to be named Dean of Harvard Law School, and she has earned praise from Republicans and Democrats alike for her consensus-building and inclusive leadership style. 

Efforts to paint Dean Kagan as not forthcoming seem designed to create an issue of candor where there is none. Dean Kagan has taken every conceivable step to meet with Republican Senators and to respond to their supplemental questions to her. Just this week she responded to a letter from the Ranking Republican Senator on the Committee with extensive written materials. Her answers during her hearing, in her written follow-up questions and then, again, in response to Senator Specter’s letter, were more thorough than any Solicitor General nominee in my memory. They are light years better than those provided by Ted Olson or other nominees of Republican Presidents. I had hoped that we would not see Senators applying a double standard to her and her answers. Those who voted for Ted Olson and Paul Clement and Greg Garre based on their answers can hardly criticize Dean Kagan. 

Let’s take a look at one example. In 2001, I asked Mr. Olson in a written follow up question after his hearing: “Do you agree with the United States v. Morrison decision? Do you think it was correctly decided?” He answered:

“I accept the decision of the Supreme Court of the United States in United States v. Morrison but have not studied that decision in depth, the briefs, the underlying legislation or the legislative history. I am certainly not in a position now to express a view as to whether or not it was “correctly decided,” and believe that it would be presumptuous, under the circumstances, to make such a pronouncement.”

After Dean Kagan’s hearing, Senator Specter sent her this question: “Do you believe that the Supreme Court’s decision in Morrison v. Olson, which ruled that the independent-counsel statute did not violate the constitutional separation of powers, was correctly decided?” Dean Kagan answered:

“As noted earlier, the Solicitor General owes important responsibilities to the Court, one of which is respect for its precedents and for the general principle of stare decisis. I do not think it would comport with this responsibility to state my own views of whether particular Supreme Court decisions were rightly decided. All of these cases are now settled law, and as such, are entitled to my respect as the nominee for Solicitor General. In that position, I would not frequently or lightly ask the Court to reverse one of its precedents, and I certainly would not do so because I thought the case wrongly decided.”

I defy anybody to read those two answers and suggest that Dean Kagan’s answer was less forthcoming than Mr. Olson’s. No Republican Senator raised an issue with regard to Mr. Olson’s answer. Yet, this is among the answers that Senator Specter deemed insufficient in a follow-up letter to Dean Kagan.

In his follow-up letter, Senator Specter asked Dean Kagan again to answer his question, even though her answers were consistent with the practice of previous Solicitor General nominees. Dean Kagan’s additional answer, as with many of her answers to Senator Specter’s follow-up letter, is expansive. I do not want to spend the Senate’s time reading the entire answer, but it goes well beyond the answers of previous nominees to disclose as much about her personal views as she thought she could.

Dean Kagan answered: 

“Morrison v. Olson, 487 U.S. 654 (1988), presented the question whether the independent counsel provisions of the Ethics in Government Act of 1978 violated the separation of powers principles set forth in the Constitution. An eight-person majority upheld these provisions even though they insulated a prosecutorial official (usually thought of as exercising quintessentially executive powers) from the direct control of the President. The Court reasoned, inter alia, that "[a]lthough the counsel exercises no small amount of discretion ..., we simply do not see how the President's need to control the exercise of that discretion is so central to the functioning of the Executive Branch as to require as a matter of constitutional law that the counsel be terminable at will by the President."

Viewed broadly, the decision stands for the proposition that Congress has broad (though by no means unlimited) power to structure or design the administrative state, including the ability to insulate certain administrative officials from direct presidential control and thereby create zones of administrative independence. Justice Scalia, the lone dissenter in Morrison, is the primary adherent of the opposite view, often known as the "unitary executive" position (though that term more recently has been applied to other matters), that the Constitution grants the President exclusive control, not capable of limitation by Congress, of any person performing executive functions.

In my article Presidential Administration, 114 Harv. L. Rev. 2245 (2001), I considered the validity of the broad unitarian position, though without specific reference to Morrison. I wrote there:           

[A]lthough I am highly sympathetic to the view that the president should have broad control over administrative activity, I believe, for reasons I can only sketch here, that the Unitarians have failed to establish their claim for plenary control as a matter of constitutional mandate. The original meaning of Article II is insufficiently precise and, in this area of staggering change, also insufficiently relevant to support the Unitarian position. And the constitutional values sometimes offered in defense of this claim are too diffuse, too diverse, and for these reasons, too easily manipulable to justify removing from the democratic process all decisions about the relationship between the President and administration -especially given that this result would reverse decades' worth of established law and invalidate the defining features of numerous and entrenched institutions of government. (p. 2326)             

This passage fairly clearly rebuts the position taken by Justice Scalia in dissent in Morrison (although I tell my students every time I teach this case that, for many reasons, I think his opinion is one of the great dissents of American constitutional law). The Solicitor General's office not infrequently argues that legislation limiting the President's control over administrative personnel or functions violates the Constitution. It is noteworthy that the office's view of its obligation to defend congressional statutes traditionally includes two exceptions: first, where there is no reasonable basis to mount a constitutional defense; and second (relevant here), where the statute infringes on the Executive's constitutional prerogatives and functions. In Morrison itself, the Solicitor General's office took a broad view of executive power in arguing against the validity of the independent counsel statute. The Morrison decision is now very well settled and I am aware of no serious recent challenge to either its holding or its basic framework. But even after Morrison, legislation interfering with the President's ability to control officials performing executive functions may violate the Constitution either because the legislation aggrandizes power to Congress itself, see Bowsher v. Synar, 478 U.S. 714 (1986), or because the legislation imposes a limitation that is severe enough as to "impede the President's ability to perform his constitutional duty," see Morrison, 487 U.S. at 691.”

Here is one more example. After his confirmation hearing, I asked Paul Clement, another Solicitor General nominee of President George W. Bush, “Is it wrong for judges to consider foreign sources when examining domestic issues? Would it be constitutional for Congress to tell the federal courts not to consider such sources? Would it be appropriate? Have you ever cited a foreign source to a U.S. court to support your interpretation of U.S. law? Has your office done this in any case you can recall over the last four years?” He answered:

        “Foreign law sources may be relevant, although the degree of relevance certainly depends on this issue. For example, in interpreting a treaty – even a treaty with domestic effect – a court might well be interested in how our treaty partners have construed the same treaty.  Moreover, in light of our role as advocates before the Court and the reality is that at least some members of the Court find foreign law more or less relevant depending on the context, our office has occasionally cited foreign law sources.  For example, in Clark v. Martinez, No. 03-878, recidivist criminal aliens argued that their detention violated federal and international law. In support of the government’s argument that no established principle of international law precluded the detention, we cited a decision of an Australian court that had rejected a similar challenge.

If Congress enacted a law directing the federal courts not to consider such sources, the office would defend the constitutionality of the statute as long as a reasonable argument could be made in its defense. The constitutionality of such legislation might depend on the specific text of the legislation. Consideration of that question would no doubt be advanced by evaluation not only of the specific text of the statute, but also any analysis conducted by the Office of Legal Counsel in evaluating the statute and advising the President on its constitutionality for purposes of his analysis of whether to sign it as well as the legal argument advanced in any pleadings filed in conjunction with the constitutional challenge. 

As Solicitor General, my role would be to advance the interests of the United States, not my personal views, and previous statements of my personal views might be used against the United States’ interest, either to seek my recusal, to skew my consideration of what position the United States should take, or to impeach the arguments eventually advanced by the United States.

After Dean Kagan’s hearing, Senator Specter sent her this question: “In your view, is it ever proper for judges to rely on contemporary foreign or international laws or decisions in determining the meaning of provisions of the Constitution? a. If so, under what circumstances would you consider foreign law when interpreting the Constitution? b. Would you consider foreign law when interpreting the Eighth Amendment? Other amendments? c. Would you ever give weight to other nations’ restrictions on gun rights when interpreting the Second Amendment?”            

Dean Kagan answered:

“This set of questions appears different when viewed from the perspective of an advocate than when viewed from the perspective of a judge. At least some members of the Court find foreign law relevant in at least some contexts. When this is the case, I think the Solicitor General’s office should offer reasonable foreign law arguments to attract these Justices’ support for the positions that the office is taking. Even the Justices most sympathetic to the use of foreign law would agree that the degree of its relevance depends on the constitutional provision at issue. A number of the Justices have considered foreign law in the Eighth Amendment context, where the Court’s inquiry often focuses on “evolving standards of decency” and then on the level of consensus favoring or disfavoring certain practices. By contrast, none of the Justices relied on other nations’ restrictions on gun rights in their opinions in District of Columbia v. Heller, 554 U.S. ___ (2008), and the grounded historical approach adopted in that case (and echoed even in the dissents) would grant no relevance to arguments from comparative law in defining the scope of the Second Amendment right.”

Again Dean Kagan’s answer was thorough and to the point; not any less forthcoming than Mr. Clement’s response. Again, Senator Specter considered Dean Kagan’s response to be insufficient, and addressed it again in a follow-up letter.

In his letter, Senator Specter asked Dean Kagan again to re-answer his question, even though she had already answered consistent with the practice of previous Solicitor General nominees. Dean Kagan’s additional answer does as much justice to the question as any other previous Solicitor General nominee, giving specific examples as she had in her first response. 

“There are some circumstances in which it may be proper for judges to consider foreign law sources in ruling on constitutional questions. (a) This is most often the case when the Court has deemed interpretation of a provision to rest in part on current practices and norms regarding some subject. (b) The classic case is the Eighth Amendment, where the Court, in determining what counts as "cruel and unusual" punishment, often looks to "evolving standards of decency that mark the progress of a maturing society," Atkins v. Virginia, 536 U.S. 304, 312 (2002) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)), as exemplified by practices both in the United States and around the world. I do not know of any bodies of constitutional doctrine other than that associated with the Cruel and Unusual Punishment Clause of the Eighth Amendment that survey current practices and norms in this way. In my last set of answers, I noted by way of example that the Court's analysis of the Second Amendment in District of Columbia v. Heller, 554 U.S._ (2008), would grant no relevance to foreign law in defining the scope of the right to keep and bear arms. This approach, which looks only to American constitutional history and traditions, seems to me much more the norm than the exception. If I am confirmed as Solicitor General, I would offer reasonable arguments from foreign law when such arguments might attract the support of one or more Justices for the Office's position. This approach seems to me the appropriate one for an advocate before the Court to take.”

These are only two examples. It is hard to believe that any Senator would argue that Dean Kagan has not provided enough information to evaluate her nomination. In fact, Dean Kagan went above and beyond to provide more information than previous nominees. She did not draw the line as Senator Specter has previously complained, at saying only as much as needed to get confirmed by a majority vote. She said as much as she could consistent with her duties if she were to be confirmed.   As she explained in her March 18, 2009, letter to Senator Specter:

“[T]he Solicitor General is acting not as policymaker, but as a lawyer representing the long-term interests of the United States. The Solicitor General would make decisions . . . based not on personal views, but on determinate federal interests. And the Solicitor General’s office has longstanding and rigorous processes in place, usually involving numerous client agencies and components, to identify and evaluate the nature and extent of these interests.”    

The Kagan nomination should not be controversial. Dean Kagan has shown that she has a deep understanding of the role of the Solicitor General. Like every Solicitor General who served from 1985 to 2009 -- Republicans and Democrats from across the political spectrum—all Senators should support her nomination, and confirm Dean Kagan to be the first woman to be Solicitor General of the United States.

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