is not squandered by unaccountable regimes. and we're acting on the well- funded conviction that ending the marginal edition of women and girls is a key to economic development. as larry summer once put it, "investments in the girls' education may well be the highest return investment available in the developing world." . . of the most powerful weapons in an ideological struggle. today's autocrats understand that as well, as a carefully channeled their own people's frustration into a rage against america. the eight years of the bush administration showed what we already knew, that democracy cannot be imposed by force. that elections alone do not equal to democracy. that democratization and

economic growth do not always go hand-in-hand. and that failing to lead by example weakens democracy around the world. the trials of those years taught us that there are wiser policies to pursue, better ways to build democracy and respect for human rights in the world. not that the objective is out of keeping with our character as a nation. indeed, it is an integral part of that character. today, we meet that objective when we understand that the world's democratic movements in nations from egypt to iran have a legitimacy that ought to be recognized, not restraint, by their governments. we meet that objective when we support those movements publicly. we meet that objective when we recognize that our strongest alliances are those built not merely on our interests but on

at the foundation of common values, such as our friendship with the democratic state of israel, such as our friendship with our european allies, such as our friendship with our asian allies in australia and others, who join with us in the common values, to present them to the world and to pursue them as international policy. a bond of generations that no momentary disagreement can undo. most importantly, we promote democracy when we live our democratic values here at home. torture is not a democratic value. extraordinary rendition is not a democratic value. overriding the rule of law in our criminal justice system, under president bush and obama, has convicted and incarcerated 300 terrorists since 9/11. without incidence is not a

democratic value. many conservatives recognized that when american citizens attend attacks on our nation, as we saw in the times square, and our civilian courts are more than equipped to carry out justice. there may well be times, however, in military commissions far opprobrious and should be used. we also honor our democratic values when we honor the tradition of civilian control of the military. as president obama correctly made clear last week. when we abandon our heritage, whether for expedience or fear or partisan advantage, we make our principles hollow in the eyes of the world, and we throw away one of the best weapons we have. all of our presidents have understood the value pragmatism, but they have also understood that it must be balanced with

america's historic role as the advocate of democratic values and democratic movements around the world. fourth and finally, every one of these policies comes with a cost. every choice rules out other choices. and i set forth, but one of the things i left out in this speech thht i wish i would put in and will reference at this time, but another critical component of our international security policy must be the pursuit of energy independence. there was an observation made yesterday, i think it was "meet the press," in the final closing remarks that if we did not pursue an energy independence policy, we will continue to be undermining our national security and reliance on sources of foreign energy. we have passed legislation to accomplish that objective through the house of

representatives. unfortunately, the senate has not. but we must pursue energy independence. not only has been the spill tragically and compellingly made that clear to us in the gulf, but certainly our relationships with those who provide us with energy, which are sometimes strained, give us ppuse to understand that energy independence is an integral part of our national security. let me talk about the fifth, what is now the fifth because i added something in, the deeper our nation sinks into debt , the more our choices will be constrained. and the more our leadership will be challenged by nations, especially china, that hold our debt to. as a matter of fact, on the path that we're on, the day will come, i fear, when our strength will be staffed by our debt -- sapped by our debt.

it is time to stop talking about discipline and that as if they are separate topics. debt is a national security threat. unsustainable debt has a long history of toppling world powers. a financial historian writes, "this is how empire's decline. it begins with debt explosions." that is what the work of the president's bipartisan fiscal commission is soap important, in my view, to our future, and why i am is urging my colleagues to see the necessity of a budget compromise that is real, politically viable, and a way to restore fiscal balance and health. budget agreements like that pave the way for historic prosperity and for america's ability to act as the sole superpower. under the first president bush

and president clinton, in an agreement like that to be implemented after the economy has fully recovered is a necessity today. what are publicly held debt reaching $9 trillion, defense spending can it no longer insure not be exempt from the hard choices preesing on every part of our budget. democrats took important steps to trim unnecessary speeding with an important acquisition reform bill that president obama signed last year with the strong support of secretary bob gates. and we passed a contract reform bill that passed the house this spring and is waiting for senate action. but those bills, of course, are simply a beginning. in an uproar and speech last month, secretary grades drew on the legacy of president eisenhower. if -- in an apparent speech last month. eisenhower said, "united states, indeed, any nation, could only be as militarily strong as it was economically dynamic and

fiscally sound." it is advice we should take seriously today. last week, i spoke of the danger of debt to our prosperity and security, and i made clear that eliminating unnecessary defense spending has to be part of the deficit equation. i did so with confidence, because i know that many of our nation's military leaders feel the same way. secretary gates, as i have said+ is one of them. he has urged congress to stop funding an additional c-17 cargo planes and an extra engine for the strike fighter. it is ot without controversy, but it is in terms of making choices. he believed we had to do so. to buy because of inflation and the military health care to cut expenses and cut unnecessary weapons systems and from the overhead that makes up more than 40% of the defense budget. a chairman has told the house

armed services committee to scrutinize the budget and see the savings that can be effective, consistent with maintaining a defense as strong as necessary to meet any challenges that might be coming our way. some congressional republicans share these concerns. on the same day as but the deficit, congressman paul ryan said, "there are billions of dollars you can get out of the pentagon. we're buying some weapons systems, i would argue, we do not need any more pirko choices in this fiscal challenging market is -- and barnett are essential. i understand that whatever savings we put on the table will prove controversial. but as with all budget crunches, the fundamental decision we face is this, hard choices today or even more painful and draconian ones forced on us down the road. now let me hasten to add, as i

did last week, that a strong economy, as well as fiscal balance, is essential, and one cannot be the victim of the other. after years of war, we still have the strongest military on earth, and thousands of men and women have given us examples of courage and sacrifice, to which the only proper responses great gratitude. but our history reminds us that arms alone do not win wars. particularly against an enemy that we will rarely, if ever, meet on the battlefield. nations win wars. the skill of our intelligence officers, the vigilance of our first responders, the creativity of our development policy, the force of our universal values, the discipline of our policy makers, the will and consensus of the american people, they are

all part of this struggle as well. they're all enter goal to our national security strategy, -- they are all entitled to our national security strategy, and we must use every part of that strategy wisely. thank you very much. >> thank you very much. i am sure will have a number of questions. i will moderate a discussion. we have about 15 minutes. we have people floating in the room with microphones. if you raise your hand, i will recognize you. introduce yourself. i will open the floor. yes, the gentleman in the first row. >> the distinguished former member of the congress of the

united states. a good friend of mine from wisconsin. so this question may not be particularly subjective. >> i will try as hard as i can to be neutral. it is so right what you said about arms alone cannot win wars. i think it may be time to reconsider our drug policy in that area of the world. we are alienating a lot of people. it is -- we need to reconsider our drone policy. we have this other " bad guy" we want to kill. we hit a house and killed 12 other people. we can measure what we kill. we do not measure the increasing circle of and around the nation as a result of that.3 wars and along our borders, they were sending planes over the border to hit some people they want to hit. we will not tolerate it. i think it is really hurting our standing in this country, and i hope we will have a chance to

review that over time. thank you. >> thank you. i think that, clearly, the complexity of wars today, clearly in every war there have been collateral damage, and that is to be lamented. and there are tragedies. whether they're women, children, elderly, there to be lamented. having said that, the complexity of this war is, of course, that our enemies are almost always colocated with, as you say, and a sense -- innocents. how do we handle that? there have been briefings on the use of drones. it is clearly, and we have had this current controversy from general mcchrystal in terms of the strategy he is pursuing, was

pursuing, and that is our strategy which is to decrease to the possible extent possible civilian casualties. because they do alienate, understandably, large portions of the people that we are trying to win over and have on our side. so you need to make a judgment. you need to make a judgment as to whether or not leaders of al qaeda, the taliban, or what ever terrorist group or faction that may be at issue here, whether taking them out with every measure possible to take them out discreetly, to target them discreetly, is worth the price. it is a difficult judgment that presidents have to make.

ultimately, they make that decision. president obama has made it clear that if we are going to succeed, it will be because, in effect, we take away the leadership of al qaeda. i think there is evidence that we have done that. i think there's evidence that we had disrupted their abilities, and the price that we have paid is the price he pointed out. and frankly, some people have paid the ultimate price. say if we cannot take out simply an individual or individuals that we clearly know without doubt are those that are acting against us, that we their full -- that we therefore will not act i think will place us in a position of not being as effective as we need to be, if we're going to take this challenge on. >> [inaudible] >> thank you.

i am the south asia director here at csis. i applaud your final point about the importance of a strong economy as part of our national security, but what you did not say really raises two questions. first of all, how do you avoid savaging the development and diplomatic budget, which are normally sitting ducks for any scissors that come around on the hill? second, you did not use the t- word, taxes. understand that taxes are politically toxic. can you get fiscal discipline without being willing to do something about taxes? >> to your first question, we will adopt a budget enforcement resolution this week, hopefully. it will have a number that is lower than the president's number, but it will not be a

discrete number, as the budget is. it will be a gross number, so that the appropriations committee will make determinations to where best it can invest the dollars it has available. 302-a is the general big number for discretionary spending. it will be what they will allocate that money to. the president has included much of that money in the security said of the budget, as opposed to the non-tuppence discretionary part of the budget. he has done -- as opposed to the non-security discretionary part of the budget. the appropriations committee, i believe, in the context of the budget enforcement resolution, will have the discretion to apply sums were their best believed to have a positive

effect by the administration, and certainly by the congress. with respect to your second point, i do not know whether you had the opportunity to either hear about or read about the statements i made last week. and i talked about revenues. i talked about revenues having to be on the table and that in any kind of quest for fiscal balance in our country, we had to look at both spending and revenue. i may have neglected it in this speech. i did not mention it. but clearly, what i said last week was that you need to have a balanced approach because you cannot get there from here without one. i have urged the commission itself, which was established by the president and will report some time late november, i hope, and hopefully reach agreement on some proposals. my expectation is that it will include both spending and

revenue focuses. >> i have a question about your comment about the fact that the war in afghanistan and other wars are not won only by military means. i wonder how you assess the admiiistration's record on developing what is sometimes referred to as the civilians surge, providing additional assistance to the afghan government to strengthen rule of law i to deliver other kinds of assistance that will give them the capacity to rule their country more effectively over the long term. how do you assess the progress amidst all the turmoil last week? some of the questions were out there about how well that is going. >> well, i am and hopeful that general petraeus -- just less hopeful that general petraeus it -- that general petraeus will have much more coordination with the civilian sector, as he did in iraq. we need to have a much closer working relationship.

obviously, the "rolling stone" interview reflected a schism. that is not helpful. secondly, i believe this administration realizes that aid dollars are essential. i want to say that i am one of those who believes that we very, very severely distracted our focus from afghanistan for the overwhelming majority of the time we have been involved with afghanistan. a surge early on, and then essentially a focused on iraq. only towards the end of the bush administration, when it was clear that the taliban or reorganizing and reforming, that al qaeda wasn't growing in strength as well -- that al qaeda was growing in strength as well, that the bush and ministration -- the bush administration was confronted with that, and this administration was confronted

with an economic collapse. but we also have to focus on these two wars in iraq and afghanistan. i think the administration has made it clear, and i think secretary clinton has made it clear, that civilian -- that is, winning the civilian side of the equation is critically important. i believe that is what counterinsurgency is all about. i think we're in the process, and i think the ambassadors. was clear, that it is part -- i think that the ambassador's point was clear. going overseas takes away investment from the united states. i think that we will be involved in a vigorous debate about afghanistan generally, but i think part of that to be -- part of that debate will be about the civilian side. complicating that would be what i set about making sure the dollars that are spent overseas are spent in the way we intend them to be.

the "washington post" has a story today about corruption. that is not helpful. not only is it not helpful, but it is not warranted to invest money if we're not convinced it will be spent in a way that will be positive. >> thank you. i think we have time for one more question. >> thank you very much. general counsel for the office of the chief defense counsel in the military commissions. congressmen, i t y for your many. -- i thank you for your comments. i recognize the military issue is hardly a flyspeck in terms of some of the larger issues. but it has symbolic and political value, perhaps especially for the democrats. i am wondering if you can speak to your comments today on the

viability of federal court as a venue for prosecuting terrorists? in light of the recent passage in the new nbaa the title cut off of funding for transfer of everyone from the guantanamo to the united states, including individuals subject to prosecution in federal court -- any to recognize that i am really not here, and our office does not seek a position on the legitimacy of either venue. that is quite genuine, but i think it would be helpful to know where the democrats stand on this and how that particular sausage got made. >> well, that sausage did not get made. it was imposed. i referenced in the course of my speech -- we referred to those amendments as gotcha amendments.

it has received it simplistic and superficial engagement in terms of how we reach an and that is necessary, and that is a determination -- how we reach an end that is necessary, and that is a determination of holding those that we hold and what to do about them. i have been down to guantanamo and spend time there a few months ago. i had opined with a number of people in the white house that there was a possibility, and i do not know that this is politically practical but i will mention it anyway -- my staff is saying to themselves, i wish you would not go there, but i am going to go there. i think there are constitutional problems with allowing a title 3 court to sit at guantanamo. there are obviously some problems with juries. i do not think their problems

with the signing a judge. perhapss a number of judges in rotating way. but i think the answer to your question is that this matter has been used in a political way by republicans, frankly, and others to inflame and instill fear in people. the bush administration did not confront that debate within his party when they pursued the disposition of cases in the civil courts. and in fact, the civil courts have been very successful in disposing of cases. i mentioned the number 300 there about. at the military tribunals have a place, and i think the administration is trying to work on that place now. i am hopeful that we will have to consider discussion and debate about that. not simply a political gotcha

environment where if someone indicates that we should dispose of the case in a venue of the united states -- i mention some conservatives, and you had some very conservatives with whom i disagree very substantially but you talked about the times square bomber having rights to be informed and tried here in this venue. and there, it was the constitution should not be put aside simply because -- and their comments was wish not to the constitution aside simply because it is a terrorist. we need to be, sent -- we need to see this when we determine summit to be possibly a terrorists. for instance, in terms of the immediate threat exception to thgiving the miranda rule as appropriate.

but i am hopeful that we will have a rational reason debate about how to do what we have done or how to respond to what we have done. that is it take people into custody who are not prisoners of war in the classic sense. but they are people that we hold that have not been in adjudicated other than by the military as having committed an offense. i think we need to figure that out. and i do not mean to imply that everybody that is detained in a foreign land, for an venue, is treated as a criminal defendant. i want to make that clear. i am not saying that. i do not want that misinterpreted by anybody, particularly the media and some of my conservative friends.

up next, larry summers. a couple live events to tell you about tomorrow morning. the confirmation of elena kagan

with questions from the senate judiciary committee. that is also at 9:00 a.m. eastern. then general david petraeus, the president's nominee to take over in afghanistan testifies before the senate armed services committee. that is set 9:00 friday a.m. eastern. now lawrence summers on the plan to increase the spectrum available for wireless devices. he spoke for an hour on the new america foundation for job creation and technology.

>> my name is michael, and it is so great to see a full house. and it looks like standing room only, and larger numbers are watching on our webcast and will be viewing this on c-span, which has cameras recording today, which means offices on the record, and at that and, larry summers -- which means this is on the record, and at the end we will take questions. sand and identify yourself. there is a microphone that will go around, because we want to make sure everything gets on of these video feed securewe're vey -- video feeds. we are pleased to have larry summers to talk about how we can create jobs and sustain

economic growth. it isn't testament to the growing importance of broadband if the president would his send his chief economic adviser to allocate large portions of the public airwaves to broadband. for broadband. here a new america, our program, are open technology initiative, and our economic growth programs, have all argued that universal and ubiquitous broadbent connectivity is essential infrastructure for the 21st century economy. broadband will be the diffusion of high-pacity and mobile broadband that will prove critical to improvements in productivity in every other sector. the mission of the proam has been to open the vast wasteland on used spectrum capacity for broadband innovation.

spectrum is the oil the information economy, and the air waves are publicly-owned resource that need to be allocated to maximize the public interest. we therefore appud the administration and the s.e.c. for taking up this challenge and for setting such an ambitious goal -- the fcc for taking up this challenge and for setting such an ambitious goal. the and this is on reallocating a federal bans for shared -- the emphasis on a reallocation of the federal bands holds promise. we know the military, the faa, and other agencies will continue to require priority access to many of the most valuable portions of the public airwaves. since most of this capacity is not used, we strongly support the administration's efforts to develop the policies and resources that can take it vantage of smart radio technologies and open these bands the private sector for

shared use in the future. finally, i would like to thank not only larry summers for his attention to this issue, but also the leadership of the commerce department. i would like to thank the white house office of science and technology policy. i thank them for supporting the fcc's national broadband plan. i know julius genachowski had wanted to be here. some of his key staff is. it is gone to take a team effort to move these issues to the top of the nation's economic and technology agenda. larry summers hardly needs an introduction. for the record, he serves as assistant to the president for economic policy and as director of the president's national economic council. previously, he has served as secretary of the treasury under

president clinton, as chief economist at the world bank, and as president of harvard university from 2001 till 2006, where he continues as a tenured professor. let me turn this over to you. [applause] >> thank you. i am glad to have this opportunity. the story of the subject that i'm going to talk about is that -- is one that should give inspiration to researchersnd academia. this ideatarted, least to my knowledge, with work that ronald did in the late 1950's. in the aftermath of his work

suggesting that spectrum be auctioned or allocated by the market, two fcc commissioners declared that he was as likely to get his policies adopted as the easter bunny was to win the preakness. [laughter] hundreds of billions dollars later, around the world he is looking good and those two fcc commissioners are not looking so forward-looking. he was inspired by his work in this area to invent the theorum, which the nobel prize committee was inspired by and awarded him the nobel prize. those of you with ideas that have not caught fire, i implore you to persevere. [laughter] the lags are long and and variable, but there is the

potential that today's crackbrained idea is the centerpiece of tomorrow's policy. that is certainly the case here. i come here today to announce the president's plan to nearly double the amount of commercial spectrum available in order to unleash the innovative potential of wireless broadband. this initiative will catalyze private sector investment, contribute to economic growth, make revenue available to the federal government, and help to create hundreds of thousands of jobs. it was developed by a team that includes the office of science and technology policy, represented here today by the president's chief technology officer aneesh chopra; the department of commerce, represented here today by ntia administrator larry strickling; and the office of management and budget. i want to thank them and the rest of the team for their hard work. at the outset, i want to

acknowledge the hard work and leadership of fcc chairman julius genachowski and his team, which put together the national broadband plan and proposed a set of steps that contributed to the initiative i am announcing today. but first, let's put this all in perspective. the president's enomic strategy is grounded in the idea of building a stronger foundation for future prospety and growth. yes, when the president took office, he inherited a financial crisis of once in every 75-year magnitude. the first priority had to be lifting the economy out of that route. even as he did so, it was essential to lay a foundation for future prosperity. that is why the recovery act included more than $100 billion in innovative investments to help americans

use energy more efficiently, high-speed rail to connect our cities, and health information technogy to create jobs while transforming our health system. that is why the recovery act also made a substantial investment in bringing broadband to unserved and underserved areas across the country. and that is why the president has undertaken a range of private-sector initiatives from the national export initiative toouble exports in five years to the innovation strategy aimed at fostering and catalyzing private sector innovation. at their root, these initiatives involve the government acting as a catalyst for private sector investments and growth. to be sure, this is not a new idea. the story of american economic growth is often told as a story of entrepreneurs. thomas edison, henry ford.

and so it is. but it is also a story of government actions to assure the necessary foundational investments for economic growth. in the 1860s, as war raged between north and south, abraham lincoln worked to realize another vision that would unify america from east to west. how did lincoln and congress, immersed in civil war, manage to build a railroad spanning the american continent? performance-based government bonds, extensive grants of government-owned land, and competition among the major rail companies. traveling across the united states used to require a journey of several months. after the transcontinental railroad was completed in 1869, it could be done in a single week. public action, private investment. same principle.

-- this same principle motivated one of the great educational achievements in our history -- the establishment of land grant colleges and universities. again, public-private the -- public property. the morrill act of 1862 transferred a total of 11.5 million acres of federal land to the states to establish educational institutions. together with an expanon of this effort in 1890, these land grants broadened access to higher education just as the demands of a rapidly industrializing society called for more highly skilled workers. today, 3 million students are enrolled each year at the 104 land-grant institutions across the country. the research that takes place at those universities transformed american agriculture and spurred the transportation -- transformation of the american economy over the course of the 21st century. public action, private investment.

today, i'm here to discuss a new avenue. to president's initiative unleash the potential of wireless spectrum. opening up spectrum will -- i will veto this later. it will create the foundation for new private sector investment activity. it has a range of other high- value uses that would not have been possible without coordinating an organizing role of government. public action, private investment. there is another reason why reforming our spectrum poly is so important. it is something that goes deep into political economy. mancur olson famously wrote about the tendency of stable

societies to become sclerotic as entrenched interests blocked process. in a similar vein, alexander gerschenkron commented on the advantages of what he termed "economic backwardness" -- countries that were late to industrialize could bypass many of the dead ends and outdated practices that encumbered the early industrializers. these countries could start with an open canvas, free from what john stuart mill once call "the slavery of antecedent circumstances." spectrum policy reform is especially important because it addresses a cutting-edge area

where we would otherwise be at a -- otherwise act oa disadvantage because our early lead in developing and disseminating technologies of yestery leave us ill-equipped for the technological challenges of tomorrow. the most important innovations so much more spectrum has been spoken for here than in the emerging nations that we're competing with. the most important innovations, economic history suggests, are not those that simply enable an existing task to be done more cheaply or more rapidly, but, rather, are those that create possibilities that could not have previously been imagined, and with them create the industries of the future and millions of new jobs. the steam engine, electricity,

the automobile -- these were technologies that did not just permit existing products to be produced better or more cheaply, but opened whole new economic vistas. we are in the middle of another one of those revolutions right now. the information technology revolution is redefining infrastructure. for millennia, progress in infrastructure came from the more effective movement of the commerce in goods and services. but in the digital world, we are ccerned with the movements of images and ideas, bits rather than mass. we are now in the midst of the third wave of the internet's development: mobile broadband. and we have only begun to glimpse the benefits of that revolution, exemplified by smartphones, netbooks, and the

applications that run on them. a major threat to this vision is what can be called a "spectrum crunch." today we are able to use smartphones and cellular internet connections because of actions that started in the early 1990s and now leave us with just over 500 mhz of spectrum for mobile communications. but this spectrum is becoming increasingly crowded. yes, it is true. the technological innovation can greatly expand what can be done with the given quantum of spectrum. but there is a limit to how quickly we can invest and invate. in recent years, the amount of information flowing over some wireless networks has grown at over 250% per year. by some estimates, the next five years will see an increase in wireless data of 20 to 45 times relative to 2009 levels.

many other countries have less- incumbered spectrum than the united states and continue to move aggressively in the wireless arena. chinese and indian mobile phone companies are gaining between 8,000,010 million subscribers per month. to be sure, the united states has the edge in the ecosystem of networks, technologies, products, and applications -- but we can only keep that edge if we continue to develop our ddgital infrastructure. these issues are fundamentally important for our compitiveness. we live in a world where skilled workers are increasingl- mobile, where ideas are readily transmitted across international boundaries, where capital is ever more mobile, where the ability of corporations to maintain their networks across international

borders is continually enhanced. in such an integrating and ever- more integrated world,as debates over everything from buy america provisions to outsourcing to intellectual property illustrate, we have an ever- increasing stake in ensuring that even as the global economy becomes more integrated, the american government must pursue policies that are focused on american prosperity and whose benefits flow to american workers. strengthening our infrastructure is su a policy. infrastructure is constructed here in the united states by american workers; it cannot be relocated; and it draws mobile factors of production towards our country. we can take advantage of the

benefits it brings. if transportation infrastructure was and remains a key source of competitive advantage in the industrial economy, digital infrastructure will be a key source of competitive advantage in the knowledge economy. there is no policy step more importann for the digital infrastructure than assuring that scarce spectrum is efficiently allocated. president obama is signing a presidential memorandum committing the federal government to the ambitious goal of makkng available another 500 mhz of spectrum by the end of the decade -- nearly doubling the total amount available for wireless technologies. the substantial proceeds realized from this process will be invested in strengthening

our public safety and investing in job-creating infrastructure. the president's plan has two components. -- four components. first, identify and plan for the release of 500 mmz of spectrum. in order to achieve this, we need a two-pronged strategy that focuses on the opportunities to use both federal and commercial spectrum more efficiently and to free up spectrum for new uses such as wireless broadband. first, the government will examine how we are currently using spectrum and identify areas for improvement, consolidation, or sharing. to that end, we are pursuing a separate fast-track process to identify a down payment of

specific bands of spectrum that could be freed up. second, we will encourage commercial spectrum holders to avail themselves of opportunities to transition their uses if there are more efficient possible uses of their spectrum. while we go forward with this planning process, the department of commerce and the fcc are also conduing an inventory of spectrum use that will help inform potential end- users of the spectrum and improve transactis in secondary markets. the second part of the president's plan is to provide new tools and new incentives to free up spectrum. for commercial spectrum,he most important tool we need is incentive auctions, as the fcc has proposed. to that end, we will work with

the congress to develop legislation that provides the fcc with the necessary authority to conduct these auctions and enable current spectrum holders who participate in them to realize a portion of the proceeds. because of recent advances in technology, a local television station in a major city -- with annual revenues measured in the hundreds of thousands of dollars -- may hold a spectrum band valued in the hundreds of millions of dollars. new technologies can now pport more than one high- quality signal in a space that previously could only fit one, enabling multiple stations to share a band of spectrum and free up an equal amount for other purposes.

realizing these scenes where we the cost the in south where the a in a these auctions. -- realizing these and gains would be t goal of these options. to be sure, our plan would allow all stations the right to continue to broadcast as they have before. citizen based on the principle of all interests. -- it is based on all -- the principle of all interests. but if a station decides to share its spectrum or give up its license to broadcast over- the-air -- and it is a choice -- there is tremendous potential for new and highly beneficial uses. there is incentive for the stations. stations that volunteer to participate would receive a portion of the auction proceeds, and business and consumers would gain from faster

and more diverse networks. ultimately, government will not make these decisions. our role is simply to set up a mechanism to help shift spectrum to its highest value uses -- ause. another opportunity to free up spectrum arises through more efficient use by the federal government. that is why the president is seeking broader tools to give federal agencies upfront planning and research funds and allow agencies to use a portion of the proceeds to adopt state- of-the-art communications. third, redeploy the spectrum to high-value uses. most of the freed-up spectrum

will be auctioned off for use by mobile broadband providers. as the great law and economics scholar ronald coase originally pointed out, auctions ensure that spectrums devoted to its most productive uses because it is determined by investors' willingness to pay for it. today, the use of spectrum most in demand is for wireless broadband, which is growing at an exponential rate with the spread of smartphones, netbooks, anddwireless-enabled devices. in the most recent auction held by the fcc, carriers were eager to snap up the available spectrum for this purpose, purchasing the right to use 50 mhz of spectrum for almost $20 -- 1/10 of the quantity of spectrum that we contemplate freeing up -- or almost $20

billion. we also recognize that providing unlicensed spectrum -- free for anyone to use -- has spurred considerable innovation, from wi-fi to cordless phones. consequently, that's why we are -- ours is not a market fundamentalist approach based only on allocations to those who are willing to pay the most. we're committed to making spectrum committed to making spectrumvailable for unlicensed uses by technology startups, end users, and others that benefit from the low barriers to entry and quick time to market. at the same time, we are encouraging the government's r&d agencies to catalyze further innovations, such as spectrum-sharing technologies that enable more efficient use this scarce resource. fourth and finally, use the -- the government will use the

auction proceeds to promote public safety and job-creating infrastructure investment. spectrum is different from the typical washington "offsets" which raise revenue. you do them only because the revenue, otherwise they would -- it would be something that often have a neutral or even slightly negative impact on the economy. unlike many measures that raise revenues for government, this is the rare instance where the same act that raises revenue -- auctioning off the spectrum to the highest bidder -- also makes the economy function better.

this is policy is a win the times over. it creates prosperity and jobs, enhances our ability to compete internationally, and, at the same time, raises venue for public purposes like improving public safety. at this point,the administration has no official estimate on the auction revenues from this plan. the actual amount will depend on effective implementation and additional design details, but based on past auctions, many analysts believe the revenue potential could well reach into the tens of billions of dollars. we propose reinvesting these revenues in making americans safer and in fostering additionaeconomic growth. the same measures can enhance our national security and

promote economic growth. that is not a new idea. remember that the highway program presiddnt eisenhower established in 1956 was originally known as the "national system of interstate and defense highways" to serve as an infrastructure both for commerce and defense. in this same spirit, the first claim on auction revenues from the freed-up spectrum is to support the creation of a nationwide, interoperable, broadband network for public safety -- originally recommded by the 9/11 commission. the long-overdue shift to modern cellular systems for voice and data will both strengthen public safety and, over time, may actually save money. even after this critical investment, we expect to have substantial remaining funds that can be used for deficit reduction and reinvested in strengthening america's

infrastructure. take just one example. today our air affic control system is based on the decades- d concept of radar, while our cars have state-of-the-art gps systems. leftover proceeds from spectrum auctions could be used to hance our effort to bring our air traffic control system 21st century.he twenty-firs it could promote air safety. what is at stake in all of this?

broadband and wireless communications make a critical contribution to the economy. consider what wireless has already contributed to our economy? before the first spectrum auctions in 1993, 54,000 people were employed in the wireless industry. toy, that number is 268,000. the industry association estimates that another 2.4 million american jobs are directly or indirectly dependent on the u.s. wireless industry. and just about every job benefits from mobile technologies through increased productivity and living standards. economic studies have found that the introduction of 1g and 2g cell phones have generated $80 billion to $150 billion a year in lower prices and better products.

funds that translate into increased buying power and increased demand by the time when our economy continues to suffer from high unemployment and excess capacity. 4g wireless technology promises to bring significant economic benefits in tworoad categories. first, the substantial capital expenditures associated with developing 4g networks will generate significant job creation. each dollar invested in wireless deployment is estimated to result in as much as $7 to $10 higher gdp. with major amecan wireless firms spending $10 billion and rising on these efforts, the -- and the figure is rising on these efforts, the benefits for job creation and job improvement are likely t be substantial. second, the effects on the larger economy.

bees will probably be more important. -- these will probably be more important. the number of mobile broadband users in the united states is expected to increase by 75% from 2009 to 2013. combined with increases in speed and functionality, the economic implications ahead are likely to be profound. we cannot really imagine what those implications will be. even as people started to anticipate that there would be and in their debt, that the internet would be transformative, few would have annicipated the 800,000 jobs that would be created by ebay. those who know about smartphones would never have predicted the thriving industry in the creation of apps.

as quality improves and prices fall, mobile broadband has the potential to help bridge the "digital divide" -- reducing geographic and socioonomic differences in broadband access to the levels we now see with television, landline phones, and mobile phones. because wireless broadband is more cost effective than terrestriabroadband in some rural areas, freeing up spectrum will enlarge markets and reduce costs, creating opportunities to expand broadband access to unserved areas. we will, as a country, onl prospered in the years ahead if we have a strong ppivate sector that is flourishing in the most

important economic sectors. that is why this product of renewal in which president obama is engaged is so important. it has many aspects -- education, health care, energy, financial reform. it also as a crucial aspect -- has a crucial aspect around infrastructure investment. each generation in the united states as bequeathedd-- has bequeathed to the next something fundamental, something that was new and almost unimaginable when it was launched, but was taken for granted 30 years later.

a one-week crossing time from the atlantic to the pacific. a waterway connecting the atlantic ocean and the pacific ocean. the persive availability of electricity. the ability to drive rapidly between major american cities. the ability to communicate with a hand-held device. it is a continuing american project. our generation has its part to play.

that is why we are committed to doing what government has always done -- using that prerty, which it is a stewardthe wireless revolution is an -- using that property which it is a steward of, to drive the american economy forward with spectrum auctions. there will be debates about the proceeds and how the auctions are best carried on. there will be debate about who is entitled to what. there will be debate about what the definitions of the property rights are. those are very important debates. they are not debates and that should' take us away --

take us away from the fundamental product of american renewal, were the proper management of this generation's crucial resources -- the spectrum --s so profoundly important. thank you very much. [applause] >> if i can ask you -- i am sorry -- it is warm in here. i think the air-conditioning is just coming back on. we seem to have maxed it out. as we go to questions, i would like to ask you to please stand and give your affiliation and name. wait for the microphone. while that comes into the room, i will try to leave it off with one of my questions. that was a terrific speech. i enjoyed the historical

context. could ask you one thing -- you talked about the tv band and how the incentive options may work to allow us to reorganize and three purpose -- repurpose as many as 20 more bands. we have open an unlicensed access to the vacant tv channels today, which is the majority of channels. that will tend to be disrupted if we move to auction. thewondering if administration can give any assurances that, as we reallocate tv spectrum, that a substantial ption will be on licensed, so that the high-tech community is not deterred in the meantime from research and

development, investment and deployment on the vacant channels. google calls it wi-fi on steroids. >> one of the challenges -- there are an enormous number of things that are very different about my current job as economic advisor to the president, and my previous job as a university president. most things are very different. there is one thing that is the same. it was a very -- with very considerable frequency, i am called on to speak to an audience about subjects where the vast majority of the people in the audience know great deal more about the subject than you do. this is one of those times. [laughter]

there is a reason we had all that stuff about history. some of it was -- a think it is very important to provide perspective on what we're doing. some of it is that it was something i knew something about. [laughter] i am lecturing you about the intricacies of spectrum -that would be bringing coals to newcastle. the best i can do for you is to tell you that, as i think i indicated in my speech, we a very aware that, what you might think of as frontier spectrumm that serves an enormously important progress in catalyzing innovation. we would not want to do anything that would inappropriately impaired tt process -- impair that process. there'll be a judgment as to the

pace and scale of what is allocated, so as to make sure that the respective equities are respected and loved legitimate -- and the legitimate uses that genete market value are respected. i tried to organize my speech in a way that made clear that, while we are mindful of the fact that there is revenue potential here, and that revenue potential is, frankly, given the catalog of national needs and the scale of federal deficits, not something insignificant or an important. we do not think of this as, primarily, being the cash cow policy. yes, people pay tuition to the land grant colleges. yes, people pay to take the

train across the country. that is not why those things were important. what is most important here is not some effort to grab revenue. what is most important here is to free up our resources so that second -- so that it can find its way to our best use. i can promise ou that, while no doubt there will be participants in the debate who will mostly be looking for a source of cash, that is not perspective of the administration. >> there is a microphone coming right behind you. >> thank you. mr. summers, thank you on behalf of dish network'. we're thrilled the administration is taking this

action today. we also believe that some very four-looking person -- policy has helped spur investment-very forward-looking policy has helped spur investment. it included nondiscrimination principles. on the technology side, we think that is the kind of thing that spurs investment and create jobs. do you anticipate that the issuance of these new licenses will include such things? thank you. >> i am looking at a member of my staff before i speak. [laughter] >> it will be the fcc's call. >> he gave me my out. the fcc sets the policy. we are mindful of the benefits in such nondiscrimination policies.

yes. >> hi. jeff murvis with "science" magazine. i want ask you something about higher education. the national academy began a study looking at the challenges facing research universities. i want to know, whats your perspective as a former university president? do you think universities are prepared to take advantage of this increase in productivity that would come from this new opportunity for broadband? if not, what do they need to do to better take advantage of what is coming? >> i would make two points. one is that i highlighted -- i highlighted in my speech the idea that, in a world where so

much as mobile, competitive advantage cannot really reside in an individual. it has to reside in something collective. that is why, if you look at american university's and the top -- universities and the top 10 companies today compared to a century ago, there has been a complete turnover. the top 10 universities today and a century ago -- the list is very close. why is that? strength, for university, is the faculty who come there because of the students who come there because of the faculty, the place. it attracts good students and has successful alumni. it benefits from its successful alumni. it tracks grade students in the future. it is enormously difficult to

dislodge. the strength of our universities is an asset for the united states that is going to be much more difficult for other countries to disloe than an asset that depends on a rticular factory or particular skill, precisely because it' resides in something collective. it is something that is also true with respect to other universities. precisely because our universities have the advantage i just described and are natural leaders with staying power, the greatest threat to them is complacency and a

failure to innovate -- a tendency to stay with traditional, organizational forms, traditional ways of doing teaching, traditional ways of doing research. my hope would be that, over time, the whole i.t. revolution would do more to change educational practice, pagogy, research methods. my guess is that when someone looks back and sees who the leading american universities are in 2050, the changes between today and 2050 will have a great deal to do with which universities were facile and

bold in taking account of information technology. the challenge for universities will be to maintain a bias toward innovation. when i was at harvard, the one thing i was certain of was that if we did not try anything that failed, that would be the biggest failure of all, because it would mean that we had not taken enough chances and made enough the thames and innovation. that kind of philosophy -- made enough attempts at innovation. that kind of philosophy is important to universities. >> and the co-founder of the wireless future program here.

will the administration committed itself to transparency in this? there is a strong commitment to transparency. the new york times wrote about how officials are going to avoid the disclosure rules. chairman genachowski was alledg edly meeting on net neutrality in private. the biggest problem was the ntia, which takes the case. they are directly in charge of this spectrum. they have a long tradition of accommodating lobbyists in secret. he has committed to transparency, but there is a long tradition of secrecy at that organization.

they have not delivered the goods. i would be happy to provide details in private. [laughter] >> i tell you what. i have a suggestion. after i leave and go back to the white house, i think the new america foundation should convene with t tv cameras here a summit of anyone here who is representing a company with you and those who share your views to discuss approaches to transparency. it ought to be on television so that discussion itself will be something that is transparent. in all seriousness, i have learned that the correct annwer to all questions -- will you write here make a commitment on behalf of the admistration to

a sentence that i have parsed - the right answer is to not agree with the solicitor. i am absolutely -- on non -- on general principle, i will not make a commitment on behalf of the general on behalf of the administration. as to the value, i could not agree with you more on the importance of working to promote openness and transparency in government. that is something that president obama has made clear as something he expects from all of those who are here. i believe i am the first of the people who have held my position -- was in a position where anyone who comes to the white house to visit me -- that news is made available to the world within three months. to strengthenest

in to enhance -- and to enhance transparency. that is a commitment that president obama expects from all of those who work in the administration. i do not know the details well enough to address anything that goes on at the department of commerce. i want to express my strong, muttons in my colleagues who have worked on this. -- strong confidence in my colleagues who have worked on this. >> thank you, sir. mr. summers, being the secretary of the treasury and now economic adviser to obama, 20 major

economies including emerging markets met in toronto. president of india met three times with president obama. where do we go what role will india play with the united states as far as this emerging technology? >> i think if you say the words "information technology, democracy, english-language, modernizing and renewing economy." just say those words and you realize how much the united states and india have in common. you realize the generation from now -- they will be to of the three largest economies in the world. -- two of the three largest

economies in the world. my hope is our relationship will be one of the deepening flow of everything -- telecommunications, student exchanges, tourism, foreign investment, international trade, diplomatic contact to discuss the architecture of an evolving global system. i do not think there is any question about the relationship being one of the most important relationships for the united statesver the next generation. that is why we have invested heavily in that relationship certainly, it is president obama's intention to continue vesting in that relationship.

>> thank you. i'm with georgetown university. the federal communications commission and the federal trade commission are thinking about what the proper role of government is to respond to the economic crisis in the production of news and public affairs. one of their ideas is an increase in the flow of federal funds to local, public media, for the production of news and local news and public affairs. is this not an idea that should be part of the mix of what to do with this spectrum as congress considers legislation to authorize spectrum auctions? >> i think it is an idea that needs to be thought through and assessed in terms of the need to support a vibrant marketplace

of ideas as possible on the one hand, and the need to be extremely careful about government involvement with media and its implications for press freedom. it seems to me that one wants to assess the right policy in those areas before getting into the question of what might or might not be an appropriate form. it is important discussion and debate. i do not have any great experience with that. i think the debate on what is necessary should probably proceed -- precede any discussion of what possible funding sources would be if funding was decided to be in the general interest. yes?

>> thank you. i right in the way of the camera. right in the way of the camera. how soon after allowing the spectrum auction would jobs go online? what are the prospects of congress moving quickly to authorize the spectrum auctions? >> i think of it as a stronger economic meesure. a stronger economy has the effect of creating jobs. second, well before congress legislates and certainly before legislation goes into effect, the knowledge that spectrum is going to be available on a larger scale will spur all kinds of innovation activity, will spur all kinds of production, will spur all kinds of thinking

about applications. i think of this kind of things as a support for confidence in a key sector of our economy at the earliest possible moment. i expect the benefits to start today. this is complex. those parts of the programs require legislation. it will certainly take time. i hope it will take place as quickly as possie, but it will not be a brief process again, there are benefits. i think we can expect people will see those quite soon. >> this will be the last question. we have to wrap it up. mr. summers needs to get back to the white house. >> first of all, thank you for

coming here to make this speech on the administration's policc which we have all advocated that there needs to be a mix of approaches in. . while i know you say there should not be a cash c, and youhink fcc in making its

determination -- do you think fcc in making its determination should look at how strong policy may impact revenue? >> i will take one more question. i certainly believe, and while i would not want to speak for the fcc, expect that questis on competition policy will certainly enter into the design of auctions that take place. questioned into competition of how it functions, questions for competition policy as to how they affect what the market policies structure will be after the auction has taken place, questions of comtition policy to affect concentration, questions of competition policy insofar as they affect the

competitive benefits that come from the possible expansion of the activities into new sectors. it is a complex area and a complex set of balances and one that i know the fcc is determined to weigh very carefully in the signing it. one more question. -- in designing it. one more question. >> [unintelligible] director summers, first thank you for coming. there is news with the fcc going to propose to have 500 megawatts available next year, and for between 225 and 3.7 over the next few years. you mentioned this today.

what does internet ecosystem mean? thank you. >> i am not sure i -- i think the fact sheet does refer to the announcement the president made today. >> that is his time line? >> yes. >> what does the internet ecosystem mean? >> i am not sure i am understanding your reagan perhaps you can pursue that with one of my colleagues sitting right in front. in thank you very much for the chance to be with you. [applause] we look forward to receiving your input and advice as this

policy process goes forward. thank you very much. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010]

>> good afternoon. welcome. everybody here, just so you know, the procedure, we have discussed this. and we are going to recognize senators in order of seniority going the usual back and forth. senator sessions and i will each give an opening statement and take turns back and forth. i urge senors to stay in fact we are going to have to stay for the ten minutes to simply keep on schedule. of course ms. kagan, welcome to our committee room. there are somewhat more people

here than usual. one of the things that had chaed slightly this week is the death of senator byrd. all of us i believe it is safe to say both republicans and democratic senators are saddened by his death. no senator came to care more about the constitution and defender of our constitutional government than the senator from west virginia. in many ways he was the keeper of the senate flame and defender of the constitutio's prerogatives. i don't know how many times we saw senator byrd hold up the copy of the constitution. the difference was, he could put it back in his pocket and recite it ververbatim, the whole constitution.

i know him as a mentor and a friend. he served for a time on this committee. i was honored to sit near him on the senate floor and engage in many a discussion of the senate rules or about our families, it was a privilege to stand with him against the constitution. in what the two of us feltwas an un-necessary and costly war in iraq. he learned he had much to teach us all. senator biyrd was an extraordinary man who loved his family and drew strength from his faith and took to heart his xhi commitment to defend the constitution. now on the issue before us

today, there have been 111 justices on the supreme court of the united states. only three have been women. if she is confirmed, solicitor general kagan will bring the supreme court to a historical high water mark. elena kagan earned her place at the top of the legal profession. her qualitycatifications are untouchable. as a student she accelled. she was a law clerk to justice marshal. and i appreciate seeing justice marshal's son in the audience here today. she worked in private prac and taught law to the nation's most

respected law hools. she counseled president clinton on a wide variety of issues. sometimes referred to as the 10th justice. i believe we are a better country because of the path that elena kagan has taken in her career. chief justice marshal wrote, our constitution is intended to endure for ages and to be adapted to the various crises of human affairs. subsequently, our constitution has withstood the test of time. our founders were to establish the constitution firm enough

toto en s onshrineree dem adom and the ru free gdom and the rule of law. it took more than four score years of the civil war to claim the lives of hundreds and thousands to win then slavement the e the enslavement of african-americans. the country in our democracy we're stronger for it. the job is not complete. it was half way through the hast century that racial discrimination was dealt a blow by the supreme court in the modern landmark case of brown versus t board of education.

congress passed the act of 64 and 65. our path to a more perfect union wa included also in dluded the rejection of 75 years ago of conservative judial activism by the supreme court and our establishing a social safety net for all americas. beginning with outlawing child labor and guaranteeing minimum wage through social security congress ensured that growing old no longer means growing poor. and it no longer means being without medical care. the progress continues today and we are better for it. of the 100 members of the

senate, stand here in the shoes of more than 300 million americans as we challenge our duty with respect to this nomination. the supreme court exists for all americans. onlyyone person gets to nominate somebody for the court, only 100 americans get to vote on whether that person should be on the court or not. it is an awesome responsibity. and i urge the nominee to engage with this committee with the american people in a constitutional conversation about the role of the courts and our constitution. when we discuss the constitution's commerce clause, we are talking about congressional authority to pass laws to ensure protection to protect communities. to encourage clean air and water and provide wealth care to

americans to protect equal rights for safe workplaces and to provide a safety net for all seniors. i reject the litmus tests from eith othe right or left that some would apply to supreme court nominees. i expect judges to consider the consequences of their decisions. to use common sense with the law. in my view a supreme court justice needs to exercise judgement and appreciate the proper role of the courts. should consider the consequences of the decisions on the fundamental purposes of the law and the lives of americans. i will urge solicitor general

kagan publically what i have urged her privately. to share with us and the american people her judicial philosophy and also to assure us of other independence from either the right of left. i believe the fair minded people will find her philosophy well within the legal main stream. i welcome questions but urge sen sto to senators on both sides to be fair. no one should presume that this telligentwoman ha excelled during every part of her distinguished career lacks independence. it is essential that we understand that as judges, they are not members of any administration. the courts are not part of any political party or interest

groups and our judges should not be partisans. that is why the supreme court's intervention in the 2000 presidential eliection in bush versus gore was so jarring and why it shook in many people's minds the credibility of the court. five conservative justices rejected the court's own precedent, and the bipartisan law enacted by congress. rejected 100 years of legal development in order to open the do for massive corporate spending. the american people live in a real world of great challenges. the supreme court needs to function in that real world within the constraints of our constitution. in my own state of vermont the

14th state of the june yunion d vote to join the union until the bill of rights was ratified. we are cautious in vermont. we understand the importance that the amendments have had in expanding individual liberties have had over the past 20 years. it should bethe kind of independent justice who keep faith with these principles and keep faith with the words that are enscribed over the front doors to the supreme court. "equal justice under law". i'll put the rest of my statement in the record. senator? >> thank you, mr. chairman. i would like to join you in recognizing the special moment of the loss of senator byrd who is such an institution here.

he believed they were two great senates, the roman and american he wanted ours to be the greatest ever. and i remember one day he gave a speech on friday morning in whi he complained about the text books and the failure to stin distinguish between a republic and a democracy. he called them touchy feely twaddle but he loved the constitution and loved our country and loved clarity of thought and we will certainly miss him. miss kagan, let me welcome you here today. this nomination is certainly a proud day for you and your family and frienns and rightfully so. i enjoyed very much our meeting a few weeks ago and appreciated the chance toalk with you then. mr. chairman, thank you for your work on this nomination. republicans are committeed to

conducting this hearing in a respectful manner. serious questions will be asked, miss kagan will be given amp opportunity to respond. she certainly has numerous talents and good qualities but there are concerns about this nomination. she has less real legal experience of any nominee in at least 50 years. it is not just that the nominee has not been a judge. she has barely practiced law and not with the intensity and duration from which i think real legal understanding occurs. miss kagan has never tried a case before the jury. while academia has value there is no substitute i think for being in the harness of the law, handling real cases over a period of years and what the

record does reveal is a more extensive background mixed with law. her college thesetithesis affir activists tendencies of the court but complained that they could have done a better job of justifies their act varieivism. she took leave from teaching at law school to work for this committee. under then chairman joe biden to help secure the nomination of ruth bader-ginsberg. and now one of the most active members of the supreme court. i know you will join with me in expressing our sympathy to justice ginsberg on the loss of

her husband. work i working in the clinton white house, doing as she described it, mostly policy work. policy is quite difference than intense legal work. for example, in the office of legal council or some of the divisions in the department of justice. during her white house years the nominee w the central figure in the clinton-gore effort to restrict gun rights and as a dramatic 5-4 decision today in the mcdonald case shows the personal right of every american who own a gun hangs by a single vote on the supreme court. miss kagan was also the point person for the clinton administration's effort to bl k block -- abortions. perhaps she was the key person who convinced president obama to c

who convinced president clinton to change his mind on that precedure.clinton to change his mind on that pcedure. her actions punished the military and defeened our soldiers as they fought in two wars over seas. as someone w feels the burden of sending young men and women into harm's way, to ensure military resucruiters were tread fairly, i can't take this issue lightly. dean kagan also joined with three over law school deans to write a letter in opposition to senator graham's legislation for determining who was an enemy combatant for the war on terror. she most recently, the nominee

served as solicitor general for little over a year. but her shortene there has not been without controversy. in her first apellate argument, miss kagan told the court that the first amendment would allow the federal government of banniban banning pam plephlets -- thomaa pain's common sense. to suggest that the government now has the power to spuppress that kind of speech is breath taking. miss kagan approved a filing of a brief to the supreme court asking that it strike down the provisions of the arizona act which limits comnies from

knowingly hiring illegal immigrants. she did this after the 9th circuit had up held the law. this is an important lal issue which the court will resolve during the next term. despite comments to the committee that she would vigorousry ly defend the don't don't tell policy if challenged in court, the action she has taken as solicitor general to place that law in jeopardy. throughout her career she has associated herself with well-known activist judges who have used their power to redefine the meaning of our constitution and have the result of advancing that judge's preferred social policies. and agendas. she clerked for justice

marshall, at least well-known activists and she has called israeli judge who has been described as the most activist judge in the world as her hero. these judges really don't deny their activist ideas, they advocate it. and they openly criticize the idea that a judge is merely that neutral umpire. thisrecord tells us much about the nominee. in many respects, ms. kagan's career has been consumed more by politics than law. and this does worry many americans. in the wake of one of the lagest expansions of governmt power in history, many americans are worried about washington's disregard for limits on its power. americans know that our exceptional constitution was written to ensure our federal government is one of limited, separated powers and part of a federal state system with individual rights referred to

our free people. but we've watched as the president and congress have purchased ownership shas in banks, nationalized car companies, seized control of the student loan industry, taken over large sectors of our nation's health care system, and burdened generations of americans with crippling debt. so this all sounds a lot like the progressive philosophy which became fashionable ang elite intellectuals a century ago and which is now seeing a revival. they saw the constitution as an outdated impediment to their expansive vision to a new social and political order in america. even today president obama advocates a judicial philosophy that calls on judges to base their decisions on empathy and their broader vision of what america should be. he suggests that his nominee shares those vis.

our legal system does not allow such an approach. americans want a judge that will be a check on government overreach not a rubber stamp. no individual nominated by a president of either party should be confirmed as a judge if he or she does not understand that the judge's role is to fairly settle disputes of law and not set policy for the nation. broad affirmations of fidelity to law ding these hearings will not settle the question. one's record also speaks loudly. it's easy to pledge fidelity to law when you believe you can change its meaning later if you become a judge. ms. kagan has called previous confirmation hearings vapid and hollow. some probably have been. and hazarded that nominees for a lifetime position owe a greater degree of candor and openness to

the committe i agree with that. i agree that candor is needed and look forward to this good exchange this week. mr. chairman. >> thank you very much. we'll go next to senator cole and then we'll go to senator hatch. senator cole? >> thank you, mr. chairman. and good afternoon to you, soicitor general kagan. we welcome you to the committee and extend our congratulations to you on your nomination. if confirmed, you will bring to the court an impeccable resume and a formidable track record of accomplishments. and you will bring a new perspective to the bench as each new justice does based on your life and on your career. you come before us today not from the halls o our judicial monastery, but with the insight of a scholar and a teacher and the political policy and legal acumen of a white house aide, law school dean, and the

solicitor general of the united states. your encounters with the law have formed the lens through hich you will judge the dilemmas of our democracy and the constitutional questions we face. at this hearing, we will try to learn from you how that lens will affect your judgment on the court. should you be confirmed, your decisions will impact our pocketbooks and livelihoods and determine the scope of our most cherished rights. from the right to privacy to the right of equal education, employment, and pay. from the right to an attorney and a fair trial for the accused, to the right to speak and worship freely. in these difficult economic times in the wake of what could be the worst environmental crisis in our natn's history. and as we continue our fight against terrorism,we are mindful of the great influence you will have on the issues and cases that wash up on the shores of our courts. the questions you will confront are not only concepts for

lawyers and courts to contemplate, behind the volumes of legal briefs are real people with real problems, and beyond the individu parties to each case will stand the rest of us who will feel either the brunt or the bounty of your decisions. we hear the overused platitudes from every nominee that he or she will apply the facts to the law and faithfully foll the constitution. but deciding supreme court cases is not merely a mechanical application of the law. there will be few easy decisions, and many cases will be decided by narrow margins. you will not merely be calling balls d strikes. if that was the case, then supreme court nominations and our hearings would not be high stakes events that they are today. but all of these things do matter, and we care deeply about the supreme court precisely because it rules on only the toughest and the most challenging problems.

we can all agree that your decisions will impact society long after you have left the court. justice oliver wendell holmes put it plainly and quote, presidents come and go, but the supreme court goes on forever. that is why it is so important for us to know who you are, solicitor general kagan, what is in your heart, and what is in your mind. we can gain some insight from your workor president clinton and justice thurgood marshall. but we haveeless evidence about what sort of judge you will be than on any nominee in recent memory. your judicial philosophy is almost invisible to us. we don't have a right to know in advance of how you will decide cases, but we do have a right to understand your judicial philosophy and what you think about fundamental issues that will come beforthe court. as you said in your own critique in these hearings in 1995, it is quote an embarrassment that senators do not insist tha a nominee reveal what kind of

justice she would make by diclosing her views on important legal issues. the president has his vetting process and we in the senate have our vetting process. but this hearing is the only opportunity for the american public to learn who you are. they deserve to learn about your views and motivations befo you dawn the black robes of a justice for that lifetime appointme appointment. i have put each nominee to a test of judicial excellence, and your nomination will be no different. first, the nominee must demonstrate that she has the competen competence, character, temperament necessary for any judge or justice. and that she will have an open mind, not only willing to hear cases with an open mind, but also willing to decide cases with an open mind. i also look for a nomin to have the sense of values and judicial philosophy that are within the mainstream of legal

thought in our country. no one including the president has the right to require ideological purity fm a member of the supreme court. we do have a right to require that the nominee accept bth the basic principals of the constitution and its core values implanted in society. and finally we want a nominee with a sense of compassion. compassion does not mean bias or lack of impartiality. it is meant to remind us that the law is more of a mental ercise or intellectual feast. it is about the real problems that will shape the fabric of american life for generations to come. the great dilemmas of our democracy invite us engage in a robust debate. and my hope is that we can engage in substantive and candid dialogue that will benefit not only tse here on the committee, but also and most importantly the public. the american people want an deserve a process that is more

than what you characterize as quote vapid and hollowharade d what so frustrated you just 15 years ago. in a tribute to justice marshall, you said that the stories he told to his law clerks served a purposef reminding you that " behind the law there are stories. stories of people's lives as shaped by the law. and stories of people's lives as might be changed by the law." so we are gathered here today to hear your stories, how your life has been shaped by the law, and how our lives might be changed by the law when you are on the court. thank you, mr. chairman. >> thank you very much, senator cole. and senator hatch. >> thank you, mr. chairman. today is a sad day with the passing of our great colleague senator robert byrd this morning, and the death yesterday

of ruth ginsburg's husband. and his love for the constitution and for this legislative body was well-known. he stood up for it all the time. and of course, i h nothing but great respect for him. i remember in the early years, wasn't very happy with me and frankly i wasn't very happy with him either. but in the end, i gained such tremendous respect for him. and love even though we have differed on so many issues. he was a towering figure. the ginsburgs celebrated their 56th wedding anniversary just a few days ago. not as long as the 68 years that senator and urma byrd were married before her death. cancer was a part of the ginsburgs' individual lives and their life together. and for many years and i know each of them was a source of strength and stability to the other. the ginsburgs have been a model of dignity and grace and justice

ginsburg and her children will be in my prayers. i want to welcome you back to the judiciary committee, general kagan. something tells me this is likely to be your last confirmation hearing. as america's founders designed it, the senate's role of advice and consent is a check. fulfilling that role requires us to evaluate a nominee for which he's been nominated. include both legal experience and judicial philosophy. while legal experience summarizes the past, judicial philosophy describes how a nominee will approach judging in the future. my primary goal in this confirmation process is to get the best picture i can of general kagan's judicial philosophy, primarily from her record, but also from this hearing, as well. i have to make my decision whether to support or not

support hernomination on evidence not on blind faith. i've never considered the lack of judicial experience to be an automatic disqualifier for a judicial nominee. many have had no previous judicial experience. what they did have, however, an average of more than 20 years of private practice experience. in other words, supreme court nominees have had experience behind the bench as a judge before the bench as a lawyer or both. ms. kagan worked for two years in the law firm, the rest of her career is in academia and politics. as the "washington post" describes, she brings experience in the political circuits that often defines washington. one of my democratic colleagues recently said ms. kagan's strongest qualifications for the supreme court are her experience in crafting policy and her ability to build consensus.

the value of such experience depends on whether you view the supreme court as a political circus or view its roleeas crafting policy. i believe that the most important qualification for judial service is the nominee's judicial philosophy or her approach to interpreting and applying the law to decide cases. this is what judges do. but dfferent judgesdo it in rally different ways. our liberty, however, requires limits on government, and that includes limits on judges. chief justice marshall wrote in marbury versus madison that american founders encouraged. unfortunately, many judges do not see it that way but believe they may themselves govern the constitution. the senate and the american pele need to know which kind of justice general kagan will be. will the constitution control her? or will she try to control the constitution? does she believe that the words

of the constitution and statutes can be separated from their meaning so that the people in their elected representatives put words on the page but judges may determine what those words actually mean? does she believe it is valid for judges to mold and steerhe law to achieve certain social ends? does she believe that a judge's personal experiences and values may be the most important element in her decisions? does she believe that courts exist to protect certain interests? does she believe that judges may control the constitution by changing its meaning? does she believe the judges may change the meaning of statutes in order to meet what judges believe are new social objectives? these are just some of the questions that go to the heart of a nominee's judicial philosophy. i want to clarify as best as i can what kind of judges -- what kind of a justice general kagan would be. to do that, i have to examine her entire record.

as in previous hearings, there will no doubt be some tension during this hearing between what senators want to know and what general kagan is willing to tell us. unlike previous hearings, ms. kagan has already outlined very clearly what she believes the supreme court nominationould be willing to talk about in a hearing like this. ms. kagan wrote the senate becomes incapable of properly evaluating or appropriately educating the public, end quote. sh identified the political inquiry about a supreme court nominee as "the votes she would cast, the perspective she would add, and the direction in which she would move the institution." but the bottom line issue and the appointments process must concern the kinds of judicial decisions that will serve the country and the effect the nominee will have on the court's decisions. if that is too results oriented, so be it, unquote. ms. kagan outlined that

approach, which she argued as necessary for supreme court nomination hearings to be more than farce. when she was working on this committee for a supreme court nomination. i believe you'll be hearing a lot about your remarks in the past. she was not a student writing a blog about some hypothetical topic she knew about. i'm confident that senators will give ms. kagan many opportunities in the next few days to provide the information and insight that she has argued is critical for the senate to properly make a decision on her confirmation. this is a critical decision. and it is about more than just one person. our decision will affect liberty itself. george washington said this in his federal address. "the basis of our political systems is the right of the people to make and order their constitutions of government. but the constitution at which any time exists till changed by

an explicit and authentic act of the whole people is sacredly obligatory upon all." the people's right to make and order the constitution means nothing if the people choose the constitution's words, the judges choose what those words mean. a judge with that much power would effectively take an oath to support and defend not the constitution, but herself. i hope this will help me further understand what kind of a justice ms. kagan would be. and i wish you well and look forward to the rest of these hearings. >> thank you very much, mr. chairman. and i like to begin with a word about senator byrd. i served on the appropriations committee for 16 out of my 18 years in the senate. senator byrd was the chairman, he was tough, he was strong, he cared. many times the constitution

popped out of his vest pocket. he certainly was -- i think in anyone's book a titan in the senate. and he's left an indelible imprint. he will be missed. today let's welcome elena kagan. over the past few weeks, there's been a drift net out trying to find some disqualifying fact or fact. but to date, i don'believe any such factor has bn found. i believe that you were imminently confirmable. your experience, i believe, makes you a very strong nominee for the court. you're the first woman solicitor general of the united states. and the solicitor general ithe only federal official that's required in statute to be "learned in the law."

of the 45 peoe who have held the job, five have gone on to the supreme court. you have filed hundreds of briefs before the court, you have successfully defended law. and you have the supreme court of nearly every living solicitor general. you are the first woman an of harvard law school. there you developed a reputation as a leader who brought all sides to the table. you're a legal advis to president clinton, served as associate white house council, deputy director of the domestic policy council, and you covered some tough issues. tobacco reform, importation of rapid fire assault weapons, campaign finance, women's health, abortion. what comes across in reviewing your writings is that you were a valuable adviser. smart, reasonable, highly respected, principled. you also served as a special

counsel to this committee during the ginsburg confirmation hearings. the biggest criticism i've seen out there is you've never been a judge. frankly, i find this refreshing. the roberts court is the first supreme court in history to be comprised entirelyf former federal courts of appeals judges. throughout the history of the court over 1/3 of the justices, 38 out of 111 have had no prior judicial experience. they include chief justice william rehnquist who was a law clerk for the supreme cot, worked for a law firm, and then was assistant attorney general in the nixon administration. they include chief justice earl warren who returned from world war ii to prosecute cases as an assistant attorney before -- district attorney before becoming california's attorney general and governor.

and they include chief justice harlan fisk stone who was dean of columbia law school and attorney general. these justices also had no prior judicial experience. but their backgrounds proved value nonetheless. judicial interpretation, i believe, is not a mechanical endeavor. like completing a math equation. the most powerful computer cannot tell us whether the president's powers as commander in chief allow him to exceed the bounds of the foreign intelligence surveillance act and other statutes in wartime. nor can they tell us whether congressional laws barring guns from the grounds of schools or implementing new health insurance requirements are within congress's article one powers. nor can they tell us what the 14th amendment's promise of equal protection under the law means for students in our public schools.

these questions are among our nation's most important. and it takes more than an umpire to find their answers. in recent years, there's been a radical change on the supreme court, which was on display even this morning. this morning, i was extremely dismayed to learn of the court's decision in mcdonald versus the city of chicago. holding that common sense state and local gun laws across the country now will be subject to federal lawsuits. this decision and its predecessor, the dtrict of columbia versus heller have disregarded the precedent of 71 years embedded in the united statev. miller, a 1939 case. i find that shocking as a former mayor. i believe the proliferation of guns have made this nation less safe, not more safe. we now he more guns than

people in this country. they are sold erywhere. on street corners, in gun shows, with no restraint whatsoever. any type of weapon. they fall into the hands of juveniles, criminals, and the mentally ill virtually every day of the year. and the supreme court has thrown aside seven decades of precedent to exacerbate this situation. from the documents that have been revealed thus far, i am encouraged that solicitor kagan holds starry decisis in high regard. for example, at harvard, she expressed strong disagreement with don't ask don't tell. but she allowed military recr t recruitment to continue.

the number of recruits did not diminish. i believe it increased. and as solicitor general, she defended the policy' constitutionality. arguing that the court should defer to the judgment. during the clinton administration, she advised the bureau that it could not ban importation. a pre-1994 large capacity ammunition feeding deces by executive der. the bureau of alcohol, tobacco, and firearms, i both wanted to ban these imports. she argued successfully that the law simply did not give the bureau that authority. elena kagan has written that the confirmation process should be a substantive one that the kind of inquiry that would contribute most to the understanding and evaluation of a nomination would include discussion first of the nominee's broad judicial

philosophy and second of her viewon particular constitutional issues. i agree and i look forward to a meaningful discussion this week. by all accounts, this nominee -- this nomination has been smooth so far. one newspaper even called it a snooze fest. if it is, it is because elena kagan is unquestionably qualified. over 170,000 documents have unmasked her as an even-handed legal scholar with a sterling reputation. each new set of documents makes it cleerer that her views fall within the moderate mainstream of legal thinking in this country. so at this stage, i see no impedime to confirmation. i hope the week ends the same way. i look forwa to proceeding. thank you, mr. chairman.

>> thank you very much, senator feinstein. and i thank the senators for keeping under the time line. >> congratulations on your nomination. it's an extremely important appointment. obviously a real honor. i also welcome your family and friends, they're obviously proud of your nomination, and i'm glad they're here to support you. i'm committed to ensuring that this process is fair and respectful, but also thorough. the constitution tasks our senate with conducting a presencive review of nominee's record. consequently the senate has a tremendous responsibility to ensure that you trulynderstand the proper role of a justice and the supreme court and our system of government. we want to ensure that if confirmed, you'll be true to the

constitution and the laws as written. we had a nice meeting in my office. you have an accomplished academic and policy background. you've excelled at princeton university, harvard law school. you were an oxford scholar, clerked on the d.c. circuit in the supreme court, you were a law professor at university of chigo law school as well as dean of harvard law school. you were a lawyer here on the judiciary committee, and then with president clinton's administration, you're now the united states solicitor general. nobody can question such accomplishments. what is lacking from your background is any experience on any court or much experience as a practicing lawyer. we don't have any substantive evidence to demonstrate your ability to transition from bei a legal scholar or political operative to a fair and impartial jurist. we'll need to acquire that

evidence through your writings and the positions you've ken over the years as well as your testimony. answering our questions in a candid and forthright manner hopefully will fill that void. we know you cannot commit to ruling in a certain way or for a particular party. our goal is to see if you will exercise judicial restraint. we want to know that you'll exercise a preeminent responsibilities of a justi by adhering to the law and not public opinion. policy choices need to be reserved for those of us elected to the legislative branch of government. it's our duty to confirm a nominee who has superior intellectual abilities. but more importantly, it's our duty to confirm aominee who won't come with results. it's our duty to confirm a

supreme court nominee who will faithfully interpret the law and constitution without personal bias. the fact that you've been a judge is not dispositive. but because of lack of judging experience, it's even more critical that we're persuaded that you have the proper judicial philosophy and will practice it. we must be convinced that you have the most important qualification of a justice. that qualification is the ability to set aside your personal feelings and political beliefs so that you can administer equal justice for all in a dispassionate way. your relatively thin record clearly shows that you've been a political lawyer. your papers from the clinton library have been described as -- and these aren't my words, a flare for the political and a flare for political tactics. you've been described as having "finely tuned political antenna" and a political heart.

including gun rights, welfare reform, abortion, whitewater, and paula jones controversies. shows that you forcefully promoted liberal positions and offered alyses and recommendations that often were more political than legal. not only that, your marshall memos indicate a liberal and seemingly outcome-based approach to your legal analysis. you have admitted that your upbringing steeped you in deeply held liberal principles. you should know -- or we should know whether as you've said you have "retained them fairly to this day." a judge needs to be an independent arbiter. this point is absolutely crucial

for justices since the supreme court isn't as constrained to follow precedent as the same judges of lower courts. you will have the final say on the law. you've been a prominent member of president obama's team in nominating you to be an associate justice, president obama clearly believes that you measured up to his polical -- or his judicial standard. a judge's ability, in other words, to empathize with certain groups over others. indeed, president ama said that you credited your hero, justice marshall with "reminding you that behind the law there are stories shaped by the law stories of people's lives that might be changed by the law." this empathy standard has been soundly rejected. a preference when -- and

preferences when judges decide. it encourages judges to usurp the functions held by the executive and legislative branchs of government. a judge or justice must unequivoally reject that standard. it does not compor with the proper le of a judge or judicial method. we all know that's not what our great american tradition envisioned for a role of the judiciary. i'lle asking you about your judicial philosophy whether you will allow biases and personal preferences to dictate your judicial standard. you once wrote that it "is not necessarily wrong or invalid for judges to try to mold or stee the law in order to promote certain ethical values and achieve certain social ends."

you've also praised jurors who belie that the role of a judge is to "do what you think is right and let the law catch up." and again another quote "bridge the gap between law and society." to me, this kind of judicial philosophy endorses judicial activism, not judicial restraint and hopefully what you've said before is not how you would be in regard to these quote when you get back to the supreme court. i ask peission to put a longer statement in the record. >> without objection. >> thank you, mr. chairman. ms. kagan, welcome, and congratulations on your nomination. let me thank you in advance for the long hours you will spend with us this week. like others, let me start, of course, by offering my ndolences to justice ruth bathe e ginsburg and the passing of her

huband. and we join the people in west virginia in mourning the loss of their senator our colleague robert byrd. senator byrd cared deeply about the senate and the constitution. and we cannot help but think of him as we begi this process today. i want to thank chairman leahy, compliment him and his staff on your efforts to make this confirmation process so open and transparent. nearly 200,000 pages of documents about the nominee have been made publicly available online. i'm particularly pleased you joined with the ranking member to request a complete and timely search of presidential archives so as much about the nominee's past work could be reviewed as possible. and i think that former president clinton deserves our thanks, as well, for his agreement to release to the committee a significant amount of material that he was entitled to block under the presidential records act. the supreme court plays a unique

and central role in our nation. justices have extraordinary power over some of the most important and most basic aspects of the lives of american citizens. the nine men and women who sit on the court have enormous responsibilities. and those of us on this committee have a significant responsibility as well. ms. kagan, i hope you will be forthcoming in ur answers so we can have the open and honest discussion of the issues our country deserves. in 2005 when we began our confirmation hrings for chief justice roberts, the court had not seen a new mber for 11 years. now we're beginning the fourth supreme court nomination hearing in the last five years. and today for the first time, we begin a hearing in a nomination that could result in three women sitting on the supreme court at one time. we've come a long way from the days when justice ginsburg was turned down for a prestigious clerkship because she was a woman or justice o'connor graduate from stanford law

school but no law firm would hire her as a lawyer, instead offering her a position as a secretary. women are increasingly outnumbering men on law school campuses throughout the nation and i'm pleased that the court is beginning to reflect that fact. i also hope that we'll continue to see greater diversity on the court in other ways including representation from midwestern and western states. it's important all americans feels the court represents their values. and i think one of the best way to accomplish that is by selecting candidates that reflect the full diversity of this country. the court is now taking shape and elena kagan if she is nominated will shape the country in the years to come. the freedoms of our citizens that will decide what limits there are on the elected representatives can solve the economic and social problems that the country faces. will confront questions of race

that are as old as our nation and as new as the changing demographics of the 21st century. because these questions that will come before t court in the next few decades are so weighty, it is unfortunate that a growing segment of americans seem to have lost trust in the court and its justices. supreme court cases by their nature can divide the country. important cases with far-reaching consequences are often decided nowby a 5-4 vote. so it's absolutely essential that the public have confidence that those decisions are not made on th basis of an ideologicalr partisan political agenda. the fairness, objectivity, and good fai of justices should be beyond question. so as chairman leahy suggested, when a decision like the one handed down this year by a 5-4 vote in the citizens united case uproots and undermines our democratic system, the public's confidence in the court can't help but be shaken. i was very disappointed in that

decision. and in the court for reaching out to change the landscape of election law in a drastic and wholly unnecessary way. by acting in suc an extreme and unjustified manner. the court badly damaged its own integrity by elevating the rights of corporation over the rights of the people, the court damaged our democracy. ms. kagan, if you're confirmed, i hope you'll keep this in mind. i hope you'll tread carefully and consider the court as a whole when evaluating whether to overturn long standing precedent ways that will have such a dramatic impact on our political system. you have developed a reputation as someone who can reach out to those with whom you may not agree and work together. and i think that's a skill that will prove to be very useful and valuable if you are confirmed. you also have an impressive education. you've worked at the highest levels of government. and you've taught and writen about the law. i have no doubt that you

understand our system of government and the roles of the three branches. but most importantly, i hope you'll appreciate the impact the law has on the lives of all americans. so it's my hope that your diverse experiences, your thoughtfulness and openness your talent for consensus building will allow you to see the long-term dangers to the court and the country and enable you if confirmed convince your colleagues to avoid making similar mistakes in the future. i also hope that you will have the wisdom and the courage that the justice you have been nominated to replace, justice john paul stevens showed time and time again in drawing the line against an executive branch that sought powers that endangered the individual rights and freedoms that our constitution guarantees. ms. kagan, of course, judging isn't easy. it's not just a matter of calling balls and strikes. because judges and particularly justices in the supreme court are called upon to apply

constitutional values that as justice suter said recently may exist in tension with each other, not in harmony. you'll have the opportunity to show the american people that you have the right combination of qualities and qualifications to make a good justice. i wish you well in that task, and i look forward to the conversation you will have not only with me but with my colleagues and with the country. thank you, mr. chairman. >> thank you very, very much, senator feingold. senator kyle? >> congratulations solicitor general kagan and welcome to the committee. i first know in agreement, we do know more diversity on the court. it's been three years now since an arizonan has been on the supreme court. >> i only confirm them, i don't pick them. >> we sat in the same room to

consider the nomination of then judge sonia sotomayor. and to impartially apply the law to resolve disputes between parties. judge sotomayor explicitly rejected the empathy standard that had been espoused by president obama. a standard ere legal process alone is deemed inefficient for the so-called hard cases where the critical ingredient is supplied by what is in the judge's heart. perhaps because his first nominee failed to defend the judicial philosophy that he was promoting, the president has repackaged it. now he says that judges should have a keen understanning of how the law affects the daily lives of the american people. and no that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens. the clear implication is that at

least in some kind of cases, judges should abandon impartiality and engage in results-oriented judging. his own press secretary has confirmed the results oriented view. exactly what kind of results is the president looking for from his judges? perhaps he wants judges who will ignore the serious constitutional questions surrounding some of his domestic legislation. or maybe he wants judges who will use the bench to advance progressive goals that have been stalled in the political process. whatever the president's motivation, his view of the role of judges is wrong. judges are to apply the law impartially, not take on social causes or cut down powerful interests. while they may disagree with legislative solutions to problems, it is not their prerogative to fix inequities. part of our task is to determine

whether ms. kagan shares president obama's philosophies of judging or is she committed to impartiality. which may be a more dficult task with kagan than other supreme court nominees who have come before the committee, most of whom have had substantial judicial records to evaluate. for instance, judge sotomayor issued 15,000 opinions in a decade and a half of district and circuit court service. ms. kagan has never served on any ench. indeed except for a brief two-year stent in private practice and one year as solicitor general, ms. kagan's entire career has been divided between academia and policy in the clinton administration. given this lack of experience practicing law, i was surprised that t american bar association awardeder a well-qualified rating since the aba's own criteria call for among other things at least 12 years experience in the practice of law. and they mean actual practice of

law, like former justices rehnquist and powell. nott only is ms. kagan's background unusual for a supreme court nominee, it's not clear how it demonstrates that she has in the president's words "a keen understanding of how the law affects the daily lives of the american people." one recent article noted that her experience draws from a world whose sign posts are distant from most americans. manhattan's upper west side, princeton university, harvard law school, and the upper reaches of the democratic leg establishment. her career in academia tells us relatively little about her views on legal issues. in 14 years as a professor, she published only nine articles. and her tenure in the academy was marred in my view by her decision to punish the military and would be recruits for a policy don't ask don't tell and the solomon amendment enacted by members of congress and signed into law by president clinton.

despite this relatively thin paper trail, there are warning signs that she may be exactly the results-oriented justice president obama is looking for. consider, for example, the judges that ms. kagan says she most admires. ms. kagan has called israeli supreme court justice her judicial hero. justice barack is someone widely acknowledged as someone who took an activist approach to judging. described as creating a degree of judicial power undreamed of even by our most aggressive supreme court justices. ms. kagan identified thurgood marshall as another one of her legal heroes. justice marshall is a historic figure in many respects. and it is not surprising that as one of his clerks, she held him in the highest regard. his judicial philosophy is not what i would consider to be mainstream. as he once explained, you do what you think is right and let the law catch up. he might be the epitome of a

results oriented judge. and ms. kagan appears to embrace the philosophy calling it among other things a thing of glory. in 2003, ms. kagan wrote a tribute to justice marshall in which she said in his view it was the role of the courts and interpreting the constituon to protect the people who went unprotected by every other organ of government. the court existed primarily to fulfill this mission. and later, when she was working in the clintondministration, she encouraged a colleague working on a speech about justice marshall to emphasize his unshakable determination to protect the underdog. the people whom no one else will protect. to me this sounds a lot like what president obama is saying now. and ms. kagan's work as a supreme court clerk for justice marshall is evidence she shares his vision of the constitution.

in many of her memos, ms. kagaa made remmendations concerning the disposition of cases which appear to be based largely on her own liberal policy preferences. for example, despite her view that one lower court's decision was ludicrous and lacked legal basis, ms. kagan recommended that justice marshall deny further review because otherwise would likely create some very bad law on abortion and or prisoners' rights. this kind of naked political judgment appears frequently throughout ms. kagan's work as a judicial clerk. in another case she said the supreme court should take the case because "it's even possible that the good guys might win on this issue." i'm concerned about her characterization of one party as the good guys. too often it sounds to me like ms. kagan shares the view of president obama and justice marshall that the supreme court exists to advance the agenda of certain classes of litigants. in another case, ms. kagan wrote there is no good reason to place

an exclusionary rule. and in another memo laced with political considerations, ms. kagan wrote, i see noreason to let this court get a crack at this question. she was even more explicit in a handwritten note after reviewing the government's response in another case saying i continue to believe that the facts did not support the arrest, but i cannot see anything good coming out of review of this case by this court. ms. kagan explains these recommendations as primarily channelling justice marshall. but the question is whether she really has any major differences with them and whether she sees anything wrong with taking the same approach. i see no evidence that that is the case. in addition to my general concern about whether ms. kagan could decide cases impartially and without bias for our against certain parties, a surprising number of things in her relatively thin body of work do raise substantive concerns about

various issues such as federalism, free speech, national security, and others. to take a last example. i'm deeply troubled by her decision as solicitor general to urge the supreme court to review and strike down an arizona law designed to prevent employers from hiring illegal aliens. the ninth ccuit unanimously upheld the law and the lower court decision because federal immigrion law explicitly allows states to sanction employers through their business licensing regimes. i think there are legitimate questions about whether the brief authorized by ms. kagan, which flies in the face of the plain language of the law and urges the supreme court to strike these enforcements down was motivated by political influence at the white house and within the department of justice. and i'm convinced that without the urging of her office, the cot would not grant today. in conclusion, there's ample reason for this committee to carefully scrutinize this nominee, scrutiny in which she invited in her article in 1995.

because she has no judicial record on which we can determine whether she is a results oriented nominee or would approach each case as a controlled arbiter, i believe the burden is on the nominee to show her record demonstrates she can be a fair and impartial justice rather than one who would have an outcome-based approach. i look forward to her testimony. >> senator specter? >> thank you, mr. chairman. i join my colleagues in welcoming you here this morning. with the passing of senator byrd earlier today, i was reminded of our hearings for judge boor, and a candid shot of him taken one saturday when we had an hour -- a saturday morning session with judge bork and his picture appeared on the "sunday new

yorktimes" and he will be with us in much of our thinking on the constitution. this hearing presents a unique opportunity, perhaps, to have questions answered which have not been answered in the past. the article which you authored for the chicago law review backed in 1995 is openly and specifically critical of justice ginsberg, justice breyer as you characterize it stone walled and criticized the judiciy committee, i think properly so as lacking seriousness and substance in our approach to the hearings. and you use the phrase that the confirmation process takes on an err of farce. you quote senator biden then chairman and myself expressing concerns that one day the

committee would "grow up on its hind legs and reject a nominee who refused to answer questions for that reason alone." so this is a unique hearing in that respect. the court, regrettably i think has become an ideological battleground. and the activism is on both sides. as a psecutor in the 1960s, i watched the constitution change virtually daily, a search and seizure map 1961 right to 1963, miranda, 1966. activism. we have the supreme court now having adopted a test of determining constitutionality since 1996 on congruence and

proportionalty. justi we've had nominations who sat where you sit not too long ago who said they would not jolt the system. modesty and then agreed to the system. assure this panel that the legislative finding of facts is not judicial function. and then tn that on its head and citizens united on a record that is 100,000 pages long and finding that there's no basis for a 100-year-old precedent, which was overturned. certainly a jolt to the stem. when senator biden was

considering the nomination of chief justice roberts, he said that he was qualified but would vote against him because as then senator obama said, "overarching political philosophy." well, the presidents make their selections based on i deolog id. and i thought -- have come to the conclusion the senators have the same standing to make a determination on ideology. it has become accept that there should not be transgression into the area of judicial independence on how a case would be decided. there's an interesting case

captioned minnesota in 2002 which struck down a requirement of the minnesota bar association, which prohibited judges from saying how they would decide cases. supreme court said that was an infringement on first amendment rights of freedom of speech. now, that doesn't say that a judge should answer the question, but it does say that a bar association rule prohibiting answering the question is invalid, which leaves tte judge at least so far as that standard is concerned with a latitude to awer the question so that even on the ultimate question of how a case will be decided, then in your law review article, you come very close to that when you lk about answering substantive legal issues. real right on the line of how

you would decide a case. but if you are precluded from asking how decisions would be -- what decision would be made or grounds of judicial independence and the precedent on that. i do think it is fair for us to ask whether the supreme court uld take a case. the congress has the authority to direct the supreme court on cases which must be heard. flag burning case, mcca mccain-feingold and many, many others. so the court's discussion is limited there if there is a congressional direction. i think it is fair from that proposition to ask a nominees whether they would take cases. i spoke at length on the floor about what i consider the

inappropriate decline of a number of cases considered. 100 years ago, a little more than 1886, e supreme court decided 146 cases, 146 opinions, a little more than 20 years ago, 1987, 146 opinions. last year, lt term, 78 arguments, 75 opinions. a lot of circuit splits, important cases areot taken up by the supreme court. the supreme court declined to hear the conflict, which arguably is the most serious clash between congress' article one powers under the foreign intelligence surveillance act which sets the exclusive means for getting a warrant, listening to a wiretap, probable cause, and the president's warrantless wiretap program justified under

article ii. the detroit federal judge said it was unconstitutional, the sixth circuit ducked it with a standing decision 2-1 with admittedly the dissenting opinion much stronger, application denied. and this was something i discussed with you in our meeting, which i thank you. i sent you a series of letters on issues which i intend to ask you about. d that was one of them. i was concern about your decisions as solicitor general on the case involving the holocaust victims, suing an italian insurance company, and the second circuit bows to the executive position saying, well, that ought to be decided between italy and the united states on how that's to be handled. i think that's wrong. but at least the supreme court ought tdecide it. not goin to ask you how you would decide the case, but would you consider it?

a case involving the survivors of victims of 9/11 has not been heard or petitioned om the second circuit. the second circuit said, well, the sovereign immunities case doesn't apply because saudi arabia hasn't been declared a terrorist state. that's really nothing to do with the act, congressional intent, not governed by sovereign immunity. said the acts occurred outside of the country, a distinction i don't understand. if the consequences of the trade towers and 3,000 americans are killed, certainly the sovereign immunities act ought to saudi arabia subject to sue, but i won't ask you how you will decide the case, but if you would take it up. another issue which wouldn't be resolved today and perhaps never is how to see to it the nominees

who make statements here ar on congressional power and on stair decisis follow-up onit. and maybe the closest approach is the idea of televising. in our meeting, you said you favor tell advising the court. not exactly the same, but bran dies talked about sunlight and publicity being the best disinfectant. well it is not a disinfectant we are looking for here but to hold nominees who answer questions here to follow through when they are on the court. thank you. >> thank you very much, senator graham. >> thank you, mr. chairman. congratulations. i think it will be a good couple of days. i hope you somewhat enjoy it. and i think you will. like everyone else, i would like to acknowledge the passion of senator byrd, who was a worthy

ally and a very good opponent when it came to the senate. my association with senator byrd during the gang of 14, i learned a lot about the constitution from him and as all of our colleagues remember, just a few years ago, we had a real -- real conict in the senate about filibustering judicial nominees and senator byrd and a few other senators who came up with the extraordinary circumstances test that would say that filibusters should only be used in extraordinary circumstances because elections have consequences and senator byrd was one of the chief authors of the language, defining what an extraordinary circumstance was. i just want to acknowledge in his passing is going to be as will to the senate. and the thing that we all need to remember about senator byrd is that all of us are choosing to judge him by his complete career. and history will judge him his complete career, not one moment in time and that's probably a good example for all of us to follow when it comes to each other and to nominees.

now, you are the best example i can think of why hearings should be probative and meaningful. you come with no judicial record, but you're not the first person to come before the committee without having been a judge. but it does, i think, require us and you to provide us a little insight as to what kind of judge you would be. very little private practice. one year as solicitor general and a lot of my colleagues on this side have talked about some of the positions you've taken that i think are a bit disturbing, but i'd like to acknowledge some of the things you have done as solicitor general that i thought were very good. you opposed applying habeas rights to baghram detainees. you suppted the idea that a terror suspect could be charged with material support of teerorism under the statute and that was consistent with the law of wars history. so, there are things you have done as solicitor general that i think will merit praise and i will certainly, from my point of view, give you a chance to discuss those. as dean of harvard law school,

did you two things you can hired some conservatives, ich is a good thing and you opposed military cruitment, which i thought was inappropriate but we will have a discussion about what all that really does mean t is a good example of what you bring to this hearing, a little of this and a little of that now what do we know? we know you are very smart. off strong academ background. you got bipartisan support. the letter from miguel estrada is a humbling letter and i'm sure it will be mentioned throughout the hearing, but it says a lot about him. it says a lot about you that he would write that letter. ken starr and ted olson have suggested to the committee that y are a qualified nominee. there's no to doubt in my mind that you are a liberal person. that applies to most of the people on the other side. and i respect them and i respect you. i'm a conservative person. and you would expect a conservative president to nominate a conservative person who did not work in the clinton administration. so the fact that you've embraced

liberal causes and you have grown up in a liberalousehold is something we need to talk about, but that's just america. it's okay to be liberal, it's okay to be conservative, but when it comes time to be a judge, you got to make sure you understand the limits that position places on any agenda, liberal or conservative. your judicial hero is an interesting guy. you're going to have a lot of explaining to do to me about why you picked judge barack as your hero because when i read his writings, a bit disturbing about his view of what a judge is supposed to do for society as a whole, but i'm sure vul good answers and i will look forward to that discussion. on the war on terror, you could in my view, if confirmed, provide the court with some real-world experice about what this country's facing. about how the law needs to be

travel theed a drafted and crafted in such a way to recognizeighting crime and fighting war. so you, in my view, have a potential teaching opportunity, even though you have never been a judge, because you have represented this country as solicitor general at a time of war. the one thing i can say without certainty is i don't expect your nomination to change the billion of power. after this hearing's over, i hope american -- the american people will understand that elections do matter. what did i expect from president obama? just about what i'm getting. and there are a lot of people who are surprised. well, you shouldn't have bee if you were listening. so, i look forward to trying to better understand how you will be able to take political activism, association with liberal causes and park it when it becomes time to be a judge. that, to me, is your challenge. i think most people would consider you qualified, because you've done a lot in your life worthy of praise. but it wwll be incumbent upon

you to convince me and others, particularly your fellow citizens, that whatever activities you've engaged in politically and whatever advice you've given to president clinton or justice marshall, that you understand that you will be your own person, that you will be standing in different shoes where it will be your decision to make, not trying to channel what they thought. and if at the end of the day, you think more like justice marshall than justice rhenquist, so be it. the question is can you make sure that you're not channeling your political agenda, your political leanings when it comes time to render decisions? at the end of th day, i think the qualification test will be met. whether or not activism can be parked is up to you. and i look a this confirmation process as a way to recognize that elections have consuences and the senate has an

independent obligation on behalf of the people of this country to put you under scrutiny, firm and fair, respectful and sometimes contentious. good luck. be as candid as possible and it's okay to disagree with us up here. thank you. >> the -- thank you, senator. and next, senator schumer. >> thank you, mr. chairman, and i, too, want to note the passing of our friend and lder, senator byrd. senator byrd's fierce devotion to the constitution hovers over this hearing and nothing could be more appropriate on the sad day of his death than holding this hearing, where the first branch of government gives advice and consent to the second branch of government as we fill somebody -- fill a position on the third. wl, welcome, madam solicitor

general. there's only so much we can do to elaborate on your qualifications. solicitor general kagan's achievements, as well as her record, are by now well known to this committee and by the end of the week, they will be well knowto the american people. frankly there are not many blanks left to fill in. given how forthcoming general kagan has already been, i would think that we could finish this hearing in one round of questioning. now, i am and i've always been a strong advocate for asking nominees searching questions and i expect nominees to answer. i also believe that my colleague on the other side of the dais have a right and a duty to ask tough, probative questions, but i also believe that the quality of answers matters more than the quantity and we can expect very high quality from you, general cage in the last several weeks, we on the judiciary committee have had had the opportunity to

get to know general kagan and she's been very forth coming in every way. i'm confident that the american people will learn, as we have, that you represent are the best this country has to offer. as we bin these hearings, i have three points i'd like to make. first, a fir nation hearing no matter who's sitting in the chair over there, has the potential to be like eating spaghetti with a spoon. it's lot of worknd it's hard to feel satisfied at the end. i believe that this will not be our experience this week with this nominee. general kagan has set herself a hh bar for providing material to this committee already. during a previous confirmation hearing, for example, she explained clearly and plainly her views about national security and terrorism, her views about the second amendment as well as her views about these very confirmation hearings, which in the past, she herself has criticized for being vapid exercises. in her questionnaire for this committee, she explained in

unprecedented detail her work in the solicitor general's office, at harvard law school and in the clinton administration. she has already provided unprecedented supporting documen documents. she gave us from her time as solicitor general over 150 briefs from her time in office. from harvard, all of her previous academic work and all the letters, ele mails and press releases that went out during her tenure as dean. from her work in the clinton administration, over 170,000 pages of documents, including 80,000 pages of e-mails, which is more than twice the material ceived in connection with the nominations of chief justice roberts and justice alito. in fact, we even have this nominee's senior thesis, her graduate thesis, nearly 70 articles she aught foertd daily princetonian's as a college student, 200 speeches and another 200 interviews. the only thing, as far as i can tell, that we don't have is her kindergarten report card. but i respectfully submit to my

colleagues that if they can't thoroughly evaluate general kagan on the record we have, there is no record nor nominee who could satisfy them. so we already have clear idea of a record and what this hearing will be like, which brings know my second point, which is why this hearing is so crucially important. we need a justice who can create moderate majorities on this immoderate supreme court. i'm going to be blunt about this. we have a hghly fractured court with an often rarifiedway of approaching the law. the righard shift of the court under chief justice roberts is palpable. in decision after decision, special interests are winning with out over ordinary citizens. in decision after decision this court bends the law to suit an ideology. judicial activism now has a new guise. judicial activism to pu the country to the right. these rulings have real-world consequences, make no mistake about it.

they affect the remedies of women who for years earn less money than men in the same job. they undermine the rules that congress and agencies can put in place to keep the water that we drink and the air that we breathe safe for our children and they rent the very fabric of our democratic system. i'm concerned that we will soon find ourself back in the lockner era of activist judging. squarely if the age of the robber barons a right-ng majority of justices held in the locker in case the people of new york state could not pass laws that limited the workweek to 60 hours much the court held this because siness had the freedom under the constitution to contract however they saw fit, even if the public safety was at stake. i fear that the recent decision in citizens united is a step backwards toward lockner, backwards to the era of conservative supreme court activism that most egregiously undermined even the most basic

regulation of safety and of welfare. in allowing corporations to spend unlimited sums to influence elections, citizens united showed just how much the current are conrvative block on the court in its zeal to bend the constitution to an ideology has lost sight of e practical consequences of some of its decisions. as justice stevens wrote in his dissent, it is a rejection of the common sense of the american people t doesn't end with citizens united. there's case after case after %-se which we could demonstrate. and in these cases, it's the american people who continue to bear the brunt of these types of rulings. but there's hope, which bring mess s me to my third point. general kagan brings pragmatism and moderation to a court in need of both. her down-to-earth views and leadership skills mean this, elena kagan has a great

potential to moderate a court veering out of the mainstream and bringing it back to the 21st century are. she is the right person at the right time. we have seen several examples of elena kagan's moderation and pragmatism already. the one i like best is a practical one, of course, while serving as the first dean of harvard law school, a difficult enough task by itself, she was able to repair a deeply and ideologically divided faculty. because of dean kagan's acumen and great good sense, she broke a hiring logjam, often between the right and the left. and harvard was able to hire 43 new professors during her tenure, including notable conservatives like jack goldsmith and john manning. she diversified the faculty, advanced academic scholarship, improved the quality of the school and improveded tone of the school as well. dean kagan routinely received warm receptions and large owe vacations from the federalist

society, the conservative legal association that gave rise to many of some --f the judicial nominees of president bush. they knew herviews. they knew that her views were largely different from theirs, as senator graham has mentioned, but they respected her pragmatism and her moderation. time after time after time, pragmatism and moderation have worked together to hold elena's views of the law anthe world. she managed to find a middle ground in the military recruitin controversy, a situation ready been discussed, but let's note that during dean kagan's tenure, military recruiting at the law school remains steady or improved while she, at the same time, voiced her disagreement with an opinion. her actions are not the actions of an ideologue. so, let me say one more -- one final word about general kagan's voluminous record as she worked

for a lawyer as president clinton and then a policy adviser. all of a sudden, these are being held as strikes against her. fwhog her previous job should be viewed as undermining her moderate credentials or calling her ability to understand the role of a supreme court justice it is a fact that a presidential nominee with a political job on had her res may is far from unprecedented. chief justice rhenquister is informed president nixon's office of legal counsel. justice thomas served in a republican department of education and the eeoc before his appointment. and like general kagan, 38 justices never served as judges before serving o t high court. fully a third of all justices who have served. what general kagan does bring to the table is unprecedented, practical experience. at harvard she managed to -- ran the equivalent of a large business a budget of 160 million, 500 employees. she had a master into relations with thousands of students and hundreds of faculty, all of whom

came from diverse backgrounds and viewpoints. general kagan is simply a terrific antidote to the lack of practical reaworld understanding of th court. she is brilliant. she is thoughtful and i think she is straight out of central casting for this job. i look forward to hearing more from you, solicitor, this week. >> thank you very much. senator cornyn? >> thank you, mr. chrman. solicitor general kagan, welcome to these hearings a and congratulations to us and your family and friends. an e-mail came across my inbox this morning i thought of as i heard the statements made o both sides here it is a quote "liberty is not a cruise ship full of pampered passengers. liberty is a man ofar and we are all the crew." i don't know yes thought of that given the nature of these hearings so far,ut of course, we will be talking about the different roles we each play on

that crew. in the last five years, this committee has met four times to court nomination of a new supreme court justice. given our recent hearings, i think it's vital to recall the core principles that should guide the committee in carrying out our responsibilities. there are two visions of the role of judges in america, i believe, including the supreme court. i will call them the traditional vision and the activist vision. we have heard the terms thrown around a lo i will tell you what i me by them and see if you and i can agree. in the traditional vision, the courts enforce a written constitution, they enforce its constitutional guarantees that the framers wrote into the text of the constitution. under this traditional view are, a court, including the supreme court, has a limited, some have called it a modest, role, albeit, very impoant. no court of law under this view has a right to invent new -- has

authority to invent new rights just because the judge happens to think that it's a good idea. that's important because the powers to make new laws are reserved to the people, not to judges, not even t supreme court of the united states. when the supreme court creates new rights, the justices, in effect, take away the power of the people to govern theeselves through their elected representatives. that, in my view, is not how our democracy is supposed to work. of course that doesn't mean that the meaning of the constitution remains fixed. indeed, the framers thought of this themselves in article 5. the constitution tells us there are two different ways to change the constitution. first, congress can propose amendments that all the states can apove or a requisite number can approve. secondly, congress can call for a constitutional convention to propose amendments. either way, preserving the ultimate power of the people to control their constitution, not

the courts. that as i said, what i would call the traditional view. we can contrast that traditional vision with the activist vision. under the activist vision, the supreme court feels prefreeh to change the constitution when they see a problem they wish to solve. according to this view, the constitution is a -- sometimes called a living document. it is a living document because the judges change it when they want to without requiring the consent of the people. this activist vision takes the power of the people to make the law and change the law and gis that power to a judiciary that is unelected and that imposes its will on the rest of us. this stands in stark contrast to the founders' vision perhaps best expressed in federist number 78, that the judiciary won't "least dangerous branch." to the political rights and the constitution because in hamilton's memorable words, the

judiciary has no influence over either the sword or the purse, no direction either of the strength or the wealth of the society and can take no active resolution whatever. it may truly be said to have neither force nor will but merly judgment. unfortunately, some members of the supreme court today seem to embrace the activist role. we saw it just last month in the case of graham versus florida, a 5-4 decision overturning the judgment of the florida legislature at allowed the possibility of a life sentence for robberies. three justices, justices stevens, ginsburg and sotomayor, explained that their interpretation of the constitution could change year to year and wi "will never stop" changing. sometimes, judicial activist create new rights and sometime these actively undermine the constitution in the process. for example, we can see the different approaches to constitutional interpretation

just today in the court's decision in mcdonald versus city of chicago. the five justices who voted to apply the second amendment to the chicago gun ordinance relied on history and precedent. on the other handing the four justices who voted not to apply the second amendment instead relied heavily on public policy argument, the kind that you would find debated in the halls of congress. the question raised by every supreme court nomination, i believeis whether the nominee believe notice traditional role or the activist vision. does a nominee believe that the courts should make policy, like congress, even though they are not accountable to the people for their actions, via elections? will the nominee enforce the written constitution and not invent are new rights or will the nominee see it as his or her job to change the constitution to align itself one their policy preferences? solicitor general kagan, as i have a heard and as you know, because you've never been a

judge what we do know about you begins and largely ends with your impressive resume, although one that does not have judicial experience. we know that you were a law clerk for two federal judges, significant professional accomplishment in and of itself and we know you served in the clinton administration as an adviser on manyhot-button political issues shall including abortion, gun rights and affirmative action. we also know, as has already been discussed to some extent, that you have talked about your judicial heroes. one, of course is justice thurgood marshall, for whom you served as a law clerk. thurgood marshall was a famous lawyer for, among other things having won't landmark civil rights case, brown versus education but it is more about his judicial philosophy what concerns me and this has already been mentioned it is clear he considered himself a judicial activist and was unapologetic about it. as we've already heard, he described his judicial philosophy as "do what you think is right and let the law catch

up." solicitor general kagan, we know the president has the right to nominate anyone he chooses. it's noteworthy, however that among his nominees, many of whom i have supported, president obama has chosen several nominees that i cannot support because they are clearly outside the judicial mainstream. one pending nominee bent the rules to keep a confessed serial killer from the death penalty. another pending nominee has argued that it is -- that there is a constitutional right to welfare payments. a third nominee has argued that federal judges should internationalize our law, matching it to views abroad. these are not mainstream position he is and in my view, they are disqualifying positions. one challenge of this hearing is that even nominees who thank have expressly rejected the activist view before this committee, let's call it a confirmation conversion, have change third tune after

confirmation. last year, justice sotomayor came before the committee and pledged allegiance to the traditional view. she testified that judges can't rely on what is in their heart they don't determine the law. the job of a judge is to apply the law, but in her first term on the court just finished today, justice sotomayor voted with the acvist vision. you have written in your 1995 law review article that the critical inquiry of judicial confirmation hearings must be the per spec if the nominee would add and the direction in which she would move the institution. i agree with that. it's important in these hearings to find out if you would move the court in a practiced traditional or an activist direction. the constitution's protection, such asfederalism, the takings clause, the second amendment right to keep and bear arms are just a few areas of obvious inquiry. solicitor genel i must say that the burden is on you.

i hope you can persuade us the path would you take if you were confirmed to supreme court. again, i welcome you to the senate and look forward to your testimony. thank you. >> thank you, very much. senator

it was sponsored by mep who had stood before us and swore swore they would never. that is reality. there is something that has occurred today which is kind of subtle. on at least three or four occasions, i have been disappointed by republican colleagues warning us that you just might follow in the tradition of justice thurgood marshall. well, miss kagan, you deserve to be judged on your own merits. because of the tenacity and integrity and values of

thurgood marshall. some may dismiss his pioneering work on civil rights as an example of e think, that somehow as a black man had been a victim of discrimination. and argued before the court, the record is pretty clear. thurgood marshall argued 32 cases before the circuit court. earning more victories than any other individual. i would also add his most famous case, brown versus the board of education, if that is an act vist mind at work, werble be grateful as a nation. he argued before the supreme

court based on society and changed america for the better. i know that my good friend's name has been mentioned as well. i will just say briefly. his political views are not favored. they are well known. the colleagues will find universal acclaim for his record as a thoughtful, fair judge of the highest level of integrity and intelligence. we share a high regard for this extraordinary american. the kind words you have had to say about him. there will be questions raised as well about modesty and humility. judge poser in, who is no liberal himself, ranked the 43 justices who served on the

pourt from most liberal to most conservative. he said four of the five most conservative justices are on the court at this moment. clarence thomas, scalia, rocketses and ali -- roberts aleo. the court needs a person who has the ability to build consensus and find common ground. leana kagan, you are such a person. efforts to reach out to conservative faculty and students are well documented. served as president reagan's solicitor general praised you

for your effort to make students, make sure students had every point of view and felt as if they were part of a professional enterprise. the professor told the story which i have recounted about your speech to the federalist society which you opened by saying i love the federalist society but you are not my people. well, they took your statement out of context and made t-shirts they wore around the campus saying i love the federalist society with your fame below that but it is an indication of friendship and an effort to reach out. earlier in your career, you worked as counselor to president clinton and worked with republicans to find bipartisan solutions on tough issues like tobacco regulation, religious liberty and community policing and the 170,000 pages of documents of your white house service there is ample evidence of your efforts to

bridge the political gaps that haunt us in america. in closing i would like to recognize the justice that you would replace. justice john paul steevepeses has been one of the wisest most accomplished jurists of our time. the third longest serving justice in history of the united states. his integrity is rock solid. the lifetime of the law, encouraged to speak his mind made him a national treasure on our highest court. i look forward to your testimony. thank you. testimony. thank you. >> senator durbin, thank you very much. senator coburn, you are next. >> thank you, mr. chairman. welcome and welcome to your family. i welcome to our time together this week. the purpose of these hearings for me is not to examine or evaluate your professional qualification. i think those are obvious.

but for me, it is to determine whether or not you have an appropriate judd dishal philosophy and you and i discussed the fact that i gave the speech about a week ago on the floor that kind of lined up with what you said in 1995, vet fact that we have a relatively new phenomenon. for the vast majority of this country's history, we dn't have these hearings. as a matter of fact, we looked at the record, we had individual meetings with nominees and they were voted on and we didn't have this dance back and forth and much as you described, the -- what you thought were fantastic and i think the -- i'm not sure i would go that far but you and i are kindred spirit wednesday it comes to whether or not the american people ought to know you and know what you think and know what you believe and to do less than that as far as this committee is concerned, we have

done a disservice, all the back and forth you've heard about activist, nonactivist, everything else, the fact is we know elections have consequences. there is a group in america though that believes in strict constrictionism. we actually believe the founder also preeminent wisdom that they were very rarely wrong and that the modern old idea that we ca mold cottin' tooing to you what we want it to be rather than what that vision was is something that ant threat cal to a ton of people across this country. so i really am going to want to know a lot about specific issues. and as we talk about it the question i would ask to you ponder is should the american people really know what you believe before we install you for lifetime tenure on the supreme court? what obligation do we have to make sure they know what your

thinking is, whether it liberal or conservative, the fact is they ought to know elena kagan by these hearings, the only way you know that and you asked me for advice before we finished and my advice is be absolutely completely honest before this committee and it is really not for the committee, baz our our country divided today, we are pole rides, regionally and politically, what we have to have in whoever comes to the court is a confidence in their heart that they are going to do what's best in the long-term for this country based on what that document says some, my hope is that with your stellar academics and your stellar intellect that your patriotismill be just as stellar, you will set a new course to set a new precedent for this country that we can once again undetand the american people can find out what a justice is all about. this is my fourth supreme court hearing, it isbvious what we

heard in the previous hearings are not predictive of the decisions of the nominees that came before the hearing. and that's schizophrenic y should we have this dance if we are not going to find out real answers about real issues about what u really believe? so my hope is all that really do something great for the senate, great for the country, and set a new standard and when you really answer questions, we are not asking to you violate judicial canons but give us answer so the american people can rest awhen you go on the court, if you do that they know justice kagan and they know -- and believe what you said because the ral measure isn't what you say here. the real measure the supreme court on here is not whether or not they gained or lost the confidence of the vast majority of americans in this country. hope is if you are a justice

that the vast majority you not a small majority, but the vast majority will learn to trust your judgment as you embrace the constitution. mr. chairman, have a full statement i would like for the record and i yield back. >> thank you it will be placed in the rerd. i just talk with senator sessions about this i want to yield to senator cardin. when senator cardin finishes his opening statement, no pressure own, senator cardin, but when you finish your opening statement, we will take a ten-minute break. senator cardin. >> thank you, chairman leahy. solicitor general kagan, welcome back to the judiciary committee. last year, i had the privilege of chairing your confirmation hearing for the position of solicitor general and while we had a spirited debate, i think we can agree we didn't have quite as much media attention at lost year's hearing. why is that? as i prepared for this had week's hearing, i have been thinking about the role of the

supreme court and the constitution in our lives. many people may say to paraphrase our vice president, why is this such a big deal? why should i care? does the supreme court really impact my life or my family? if you have children, if you work for a living, if you're a woman, if you vote, if you care about the air we breathe or the water we drink, you need to pay close attention to the confirmation hearing and the work of the supreme court. the constitution has a very tangible impact on all our lives. it is the foundation of the role of law that is supposed to protect us from the the abuses of power, abuse of government, abuses of big business. we, the people of the united states, we the people in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the geral welfare and secure the blessings of liberty to ourselves and our pos terity to or gain and establish this constitution to the united states of america. the authors of the constitution understood the timeless idea of

justice was paramount. as we gather this week to consider your nomination to be the 112th person and only fourth woman to serve on the highest court, my goa is to ensure that you have a clear understanding of how profound an impact your future decisions may have on the lives of every day americans. based on our conversations, i trust you will pay put the interests of the amecan people and justice for the american people first above popar opinion or politics. i also will do all i c to ensure that the american people, whether you are watching the hearing at home, at work with or at school, gain a beer understanding of how the supreme court, which has a duty to uphold the constitution, really does affect your lives. the principles outlined in constitution are not some be a strangt historical theater. at its heart, the constitution and the rule of law is about people, we the people. et cetera start with families and children. i, along with millions of american school children, were denied full educational opportune knit our schools because i was forced to attend

segregated public schools. the supreme court in brown v board of education rejected the notion of separate but equal and helped move our nation forward toward a more perfect union. it was a young attorney from baltimore, thurgood marshall, who argued that case before the supreme court. he later became the first african-american associate justice and throughout his distinguished career aided by energized law clerks, including our nonee, elena cage f you believe you have a right to fall in love and get married to whomever you wish, you are mostly correct but only because the supreme court intervened on the side of the american people when it ruled in loving v virginia that interracial couples could marry. indeed, prior to that decision, parents of the current president of the united states, some members of the united states senate and the supreme court could not have married in some states. if you believe that what you do in your home in your bedroom, is your business and not -- no one

else's, especially not government's, you are correct, but only because of the supreme court decisions like griswold versus connect kept and lawrence v texas reinforced our individual rights to privacy, keeping government out of the pry vass consensual activities of adults. the supreme court was on the side of the american people when it ruled in roe v wade that the constitutional right to pray vassey exists. the court was not taking sides in debate on abortion, it was stating that there were certain matters wit government should not interfere in the privacy of families. these landmark decisions and others continued a forward progression of protections for the american people against the abuse of power, particularly by an overreaching government. such was the case went supreme court ruled in gideon v wayne wright that the constitutional right to counsel in a criminal proceeding was guaranteed, egardless of the wealth of the defendant. the supreme court gave the words "equal justice under law" real meaning. perhaps this decision was to be

expected, sincehe oath of office declared by every federal judge makes it clear that he or she will administer justice without respect to person or -- and due equal right to the poor and to the rich. i believe that our next associate justice in the whole supreme court should be guided by legal precedent and the best traditions of the supreme court in advancing constitutional rights for individuals against abuses of power, whether by government or business, even as our world continues to change and evolve. justice thurgood marshall said in a 1987 speech, "i do not believe the meaning of the constitution was forever fix ted philadelphia convention. to the contrary, the government they desides are was defective from the sta, requiring several mindments, a civil war, a momentous social transformation to attaint system of to constitutional government and its respect for the individual freedoms and human rights we hold as fundamental today." some changes have not been for the better. i have been troubled by the

increasing number of 5-4 decision over the last five years in which a divided supreme court reversed decades of progress and precedent with rulings that side with powerful corporate interes rather than protecting individual rights. this trend was clearly shown in citizennited where the supreme court reversed precedent and overruled congressional intent, giving corporate special interests even more power and influence in elections. in the ledbetter care the majority of the supreme court protected employers over workers in gender discrimination. again, reversing the clear intent of congress n another 5-4 split decision, gross vfbl financial, court made it easi for corporate america to discriminate against aging baby boomer workers. if you work for a living, if you are a woman, if you are worried that corporations may have a louder voice in elections than hard-working every day americans, you need to keep an eye on the judicial legislating being practiced by this supreme court. are you a consumer? do you buy products for your

family? if so the supreme court in legion, yet another 5-4 split case should be a concern to you. here, the court ignored long-standing precedent to protect big business, to perpetuate price fixing. it was a ruling that you put consumers at risk. another 5-4 decision was a step backwards this time for the environment, by reducing protection from wet lands under the clean water act. if you are like the rest of us and wonder if bp will be held fully accountable for the economic and environmental devastation brought on by the ongoing oil spill in the gulf of mexico, you will be equally alarmed by the supreme court decisi in exxon versus baker, which imposed limits and damages that could be recovered in environmental disasters. time and time again, by the narrowest of margins this activist court has sided with big business over main street america, wiping away protections set in place by years of legal precedent and congressional action. as justice stevens stated in citizen united, i know senator

durbin quoted, this i want to give the line that comes aftwards this is justice stevens, essentially five justices were unhappy with the limited nature of the case before us so they changed the case to give them saechbs portunity to change the law. there were principaled narrow paths that a court that was serious about judicial restraint could have taken. i join him in wondering just how and why those who pross to oppose judicial activism have voice third support for these supreme court decisions in which justices have overturned long-standing precedent and substituted their own legislative voices for congress, blurring the line between the legislative and judicial branches of government. justice stevens followed in the be tradition of the supreme court in advancing individual constitutional rights. like justice steven, elena kagan is a known consensus builder. she is also an unquestioned legal scholar, a proven leader and a dedicated public servant. as someone who has worked my whe career expand access to justice for all, i am particularly impressed by her

rerd at harvard, of greatly expanding the number of law school clinic which is would provide essential po bono work for individuals who otherwise could not afford legal representation. i welcome the american public to these hearings as we open a window to the supreme court and shine a light when the critical role the constitution and the rule of law plays this our lives. i come to these hearings not solely as a u.s. senator, a legislator and a lawyer but as a husband, father and grandfather. every ruling made by the supreme court that continues to uphold constitutional potections that keep my granddaughter safe and secure is a victory. every supreme court ruling that opens the door to abuses of power by the government or big business by overturning long-standing precedent or reversing congressional intent puts all of our children and grandchildren at greater risk. i will do all i can within my power to protect my family and every american family from such risks. solicitor general kagan, i welcome you to these

confirmation hearings and i look forward to your testimony and responses to our questions. >> thank you very much, senar. solicitor general, you have been very patient siting there, as has everybody else. trust me, tomorrow, you will be given a chance to speak, a great deal, and you will -- and you will later this afternoon with your with opening statement. we will stand in recess for ten minutes.

we are actually slightly ahead of schedule. that is a rare moment in the united states senate we're ahead of schedule on anything. so i compliment you for doing that and i'm going to -- mr.

chairman does this mean that the remaining senators get extra time? >> no. [laughter] >> nice try, though. nice try. >> i join my colleagues in condolence on this day of sorrow for the senate and the supreme court alike and also in their appreciation for the long and distinguished service of mr. justice stevens and i welcome you solicitor general kagan. you coim before the committee with a remarkable record, a psychologicalor avenue the law, a skilled practitioner. i enjoyed meeting with you in my office and look forward to the discussions as the week proceeds. i think it is fair to say that some of my republican colleagues are not so favorably disposed to your nomination. we have already heard a lot about their concerns.

let's not lose the big picture here. you have the solicitor general of the united states, a lawyer for the united states, before the supreme court and the former dean of harvard law school, a school to which i suspect every one of us on this committee would be proud to have our children attend. talk about the institution to which you have been nominated, our supreme court. the judiciary has no influence over the sword or the purse. no direction, either the strength or the wealth of the society and can take no active resolution, whatever. it may be truly sad to have neither force nor will but merely judgment.

in other words, to fulfill its role in our constitutional system, the supreme court must act in a matter that adheres to the demans of the law. important institutional traditions help the court fulfill that duty. it must respect the other institutions of government. it can bolster the rule of law by respecting precedent. it can uphold our constitution but it cannot decide constitutional questions unnecessarily. the court can exercise discretion wisely but to do so, it must balance, not just apply a favorite ideology. the court can bring true justice but only if it approaches each case without a predisposition or bias. unfortunately the conservative wing of the current supreme court has departed from those great institutional traditions.

presidents whether of old or recent vintage have been discredited at a -- precedents whether oldor recent have been discarded. from the five men conservative wing we have witnessed the discovery of an individual right to bear arms, a right that previously has gone unnoticed by the court for 220 years and today its extension to all of our states and municipalities. we've seen the first prohib i guess on to protect the health of the mother and this court injected itself into the day-to-day business over the lower courts the gay marriage trial, its decision 5-4. even more striking, the record

of corporate interest before this supreme court. the ledbetter case allowed an employer to get away with wage discrimination. the gross case made it far harder for a victim of age discrimination to prove his or her case. protecting defendants, likely corporations from injured plaintiffs. it was concluded that an employee who challenges an arbitration demand must have that challenge decided by the ash trador. -- arbitrator. opening our democratic system to a massive new threat of corruption and corporate role. there is an unmistakable pattern. for all the talk of umpires and balls and strikes at the supreme court, the strike zonn for corporations gets better

every day. this tide of decisions running against accountability of big corporations degrades a core constitutional principle. the the founding fathers provided as an essential element of our constitution the institution of the jury. the founders put the jury three times into the bill of rights. it is there for a reason. as the founding fathers knew, they were tough, smart politicians. when the forces of society are against you, when lobbyists have the legislature tied in when the owners of the local paper marshal popular opinion against you, one last sanctuary still remains. the jury. against that tide of corporate influence and wealth stands the

jury. its hard, square corners resolute. that's why they called the jury an institution of government and not a mode of the sovereignity of the people. not for nothing he discusses the jury entitled on what tempers the tyranny of the majority. powerful corporations don't like to jury. they don't like the fact that they too must stand before a group of ordinary citizens without the advantage that money and influence can buy. but to tamper with a jury is a crime. so they have long been on a campaign to smear the jury. the runaway jury as their p.r. folks have coached them to call it. sadly the supreme court seems to be buying what they are selling. the exxon valdez rejected a jury's award, just one year's

profits for exxon and reduced the award by 90%. anything more than the damage award would make punitive damages too unpredictable for corporations. the judgment of the jury and the wisdom of the founding fathers were for the core lesser values that providing corporations predictability. what about the unpredictability for alaska, exxon's drunken captain running his ship to the ground. one can't help but wonder now when additional precautions b.p. might have taken in the gulf if that corporation didn't know that the supreme court had its back on predictability. i mention these concerns to you because if confirmed you will make decisions that affect every aspect of americans' lives. if con firled, i hope and trust that you willa adhere to the

best institutional traditions over the supreme court and act with a clear understanding of the proper role of all the institutions of governments provided for us by our founding fathers. it is a great constitution we have inherited and you will be a great justice if you interpret our constitution in the light of its founding purpose rather than according to the preferences of today's most powerful interests. i wish you well. i look forward to our week together. thank you very much. thank you, mr. chairman . >> thank you very much. >> thank you, mr. chairman . like my colleagues i want to acknowledge the tremendous loss of senator byrd. many in here, since we're in the judiciary committee did note his love and respect for the constitution. i did want to acknowledge his coal mining roots. that he never forgot where he came from. i was reminded of this at his 90th birthday party when

senator kennedy stood and told about his bus stalling out on a highway and senator kennedy himself called the west virginia highway patrol. he said our bus has broken down on the highway. she said where are you? we're on the robert k. byrd highway. she said which one? we have heard a lot today about your work experiences and we should. when i think about the real world experience you had i'm reminded of the famous speech that president teddy roosevelt gave 100 years ago this year. to paraphrase president roosevelt, it is not the critic who counts. the credit belongs to the one who is actually in the arena, who strives to do the deeds and in at the best knows in the end the triumph of high achievement and his place shall never be with those cold and timid souls

who neither know victory or defeat. there are always critics on the sidelines but you have actually been in the arena as a manager, as teacher, as an ad advisor and a consensus builder and a lawyer. in every job you have worked very hard and done very well. that is why you're before us being considered in the words of teddy roosevelt for this high achievement. your work on the frontlines tells me that you have practical experience thinking about the impact of laws and policies on the lives of ordinary americans. when you're involved considering the nitty-gritty details, you have to figure out when to compromise and when to hold firm. you have to know exactly what the consequences of your recommendations will be. you have to think about the lives that will be impacted. you were the first woman dean of harvard law school. there you were credited with

bringing together a faculty that was rife with division. whether you were helping recruit talented professors to harvard from across the political spectrum or whether you were working with senators from both parties on anti-tobacco legislation you forged coalitions and resolution between seemingly intractable parties. you can still get a standing o valingse vegas from the conservative federalist society who inspired a group of 600 law student who is showed up for a rally wearing i love elena t-shirts. in several different jobs now, you have successfully managed lawyers and worst yet, law professors, a group that can certainly be described as fearless in the face of supervision. in some, you have a lot of practical experience reaching

out to people who have very different beliefs and that is increasingly important on a very divided supreme court. that must be, by the way, why you have all the previous solicitor generals from the past 25 years under both democratic and republican administrations supporting you for this job. you also spent years teaching students as a law professor. you understand how law school allows stuventes to dig deep into the details of a case and see the shades of gray. i think those of us in congress could do well to recall that more frequently. to remember a time when it was our job to think through both sides of an argument and to give credence to the legitimate point of both sides. i believe people need to engage rather than retreat to the opposite sides of the boxing ring. this brings me to a story about harry blackmon. his oldest daughter gave him a

classic book about the first year of law school. after reading the book, justice blackmon wrote a book surely there is a way to teach law with some limits in its basic good. you properly points out there is room for flexibility and different answers and that not all is black or white. if i ever learned anything on the bench, he said it is that. it seems to me, general kagan, that in all the jobs you have had, you have carried the spirit of law school with you, efforts to reconcile different views. we would welcome such traits on our supreme court. i also see you like someone like your former bozz, thurgood marshall who thinks the law is more than an academic exercise. one who thinks deeply about the