the unemployed. others want to take the stimulus take affect because others are in the long term. the question to me is when do we switch from stimulus to protect the economy and create jobs. .

>> the more specific we are, the better chances of what we do really matter. i understand the importance of caps and triggers as ways to get to the promise land. i would like to see us deal with real solutions. in listening to you will, i have some principles that are really important to me and some of them are like motherhood and apple pie. i want to first truly protect the truly disadvantaged whatever

we do. i have not heard a single republican or democrat to disagree with that. i want to make those smart investments we have to make while we become more fiscally responsible. i want to make sure that america is safe and secure, but i personally am not crazy about being the world's policeman more quickly can afford to be. i do think we have to reform the tax code. from my viewpoint, the greatest contribution we could make to that is to work to simplify, to broaden the base, and to make it so that america is more competitive in a knowledge-based global economy. i hope we will deal with the tax gap. i hope we will focus as a group specifically on things that will be very tough for you all, but

that is to eliminate or sharply curtail some of these tax expenditures which i think for just spending by different name and spending that in general is less effective than it otherwise might be. that is half of the revenue currently coming into the country, almost. i hope we will establish caps that will keep revenue and there is no magic in the number i will say, but i don't want to see revenue as a percentage of gdp to be much higher than 21%. we balanced the budget systems at that level and i think we should work to make the tough choices to bring spending down to the same level, to about 20% of gdp. to do that, we have to make tough choices. none of visible be easy. we will have to really reduce discretionary spending.

there is no way around it. i think we should be very specific as to how we address that. we will have to reform entitlements. and all mandatory spending. you talk about social security and medicare but there is other mandatory spending that is a big part of what we are looking at. as we do that, we have to protect what we do for the truly disadvantaged, the disabled, and the very elderly, and we should work to extend the solvency of social security for 75 years. on the question of health care, i think what we have done to address access is really important. max, i think you got all the cost that was out there to get right now. i think you can be durned proud

of that. so security -- health care would just consumed the budget. if we do not address it today, it will simply get worse down the road. i thought what the brits did was interesting where they had 75% of their deficit reduction in spending and 25% roughly in revenue or whether some people think it should be zero, we still have to discuss it and get their because the numbers doing it either way simply are a step too far. we should talk about that. again, i think none of the recommendations to it -- should take place in my opinion on the timing viewpoint for prior to fiscal 2012 because the economic

recovery is too fragile, but i think by 2012 the plan we put forward can be put into law. as it relates to your question about how does a plan make a difference -- i spent my life looking at economic plans. most of them are a hockey stick. that is the reason most forecasts are ignored. we have to put forth a realistic plan. if you put forth a realistic plan, people will believe it and it will have a positive effect on the market. i think we have proved that in what we did in 1997. we have to have a realistic plan and for that plant to be realistic we have to be as specific as we possibly can and. i hope that working for our working groups that we can get to that specificity and make some good recommendations for the president to consider.

thank you. >> thank you. >> we had hoped to have some reports from the working groups. our time is up for this meeting. what i would like to do is to let us pass on that for today and we will consider to take up the issues in the working groups that will need -- be meeting for the month of july. but you very much for being here. >> that you all. >> good session. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010]

>> next, part of the senate confirmation hearing for supreme court elena kagan. then, today's "washington journal." yesterday, supreme court to elena kagan testified for a third day. here is part of those proceedings. this 50-minute portion includes different sections. and yield to senator sessions. >> thank you, mr. chairman. solicitor general kagan, i enjoyed our conversation yesterday but was disappointed a bit with regard to how you described the situation at

harvard and the blocking of the military to have full and equal access to the recruiting offices as required by law. i think that the white house has been spinning that story inaccurately, and i believe your testimony was too consistent with an inaccurate spin and didn't frankly set forth what you did. and i was a bit disappointed at that. i'd like to follow up and go in a little direction today. ironically and almost amazingly, it felt like it was up to you the solicitor general to defend that law, the law of the united states, the don't ask, don't tell law that you oppose so much there.

let me focus on your responsibility and how you handle it. during your confirmation process, you stated that your, quote, role as solicitor general, however, would be to advance not my own views but the interests of the united states and that you were, quote, fully convinced that you could represent all of these interests with vigor even when they conflict with my own opinions, close quote. i think that was the right position, the only position you could take if you were to assume that office. and because of your widely publicized opposition to the don't ask, don't tell law and to the solomon amendment, you were specifically asked at the hearing if you would be able to defend those statutes as solicitor general, and you said that you would. you said, quote, that your approach, quote, to cases involving challenges to the statute involving don't ask,

don't tell policy would be the same and that you would, quote, apply the usual strong presumption of constitutionality as reinforced by the, quote, doctrine of judicial deference to legislation involving military matters. now, during your time as solicitor general, two cases came before you challenging don't ask, don't tell. they came up from the federal courts of appeals. one case was from the first circuit in boston, your old circuit, filed by 12 plaintiffs, individual, different plaintiffs. the aclu and your former colleague, lawrence tribe, represented that group. a second case witt versus department of air force came out in the ninth circuit. it was filed by a single plaintiff plaintiff, and the aclu was the attorney in that case or one of the attorneys in that case. so in both cases the plaintiffs

argued the supreme court's recent decision in lawrence v. texas admit that the don't ask, don't tell law, which says that people who are openly homosexual may not serve in the armed forces, should be struck down as unconstitutional. in the first circuit case, the court upheld don't ask, don't tell. the plaintiffs said the law was uncontusion nal as applied to them. the court agreed that lawrence versus texas was under scrutiny but upheld the statute at that time. but the ninth circuit did not approach it in that way. they did not apply the traditional deference to military issues as did the first. the ninth circuit invented a new standard of review for the substantive due process challenge requiring the government to make detailed individual findings in these cases. most importantly, unlike the

first circuit, the ninth circuit failed to acknowledge the need for uniformity in military policies, and so the court held that the plaintiff was entitled to a full trial and that every plaintiff, apparently, would be sbitd led to a full trial, something that the military had been resisting steadfastly for a number of years. and so in the first circuit c e case, interestingly, 11 of the 12 plaintiffs didn't ask for a review even though they had lost the case. i can only assume it's because they were concerned they may lose the case if the supreme court took it and had a clear view of the law. they had, as you know, upheld the solomon amendment 8-0. and i think based on the history we could expect the supreme court to affirm that statute in my personal judgment.

but the -- and so you told the supreme court they should not take the case up. one plaintiff did ask that it go up. and you contended that the ninth circuit was a better vehicle and the ninth circuit case had shortly before that moment, had already been remanded to the trial court to conduct a significant trial that was contrary to the position that the department of defense had been taking. and, indeed, it would be difficult if not impossible to force the don't ask, don't tell law if you have to have an individual trial in all of these cases. so it was a severe damaging blow to the department of defense and the ninth circuit law would control 40% of america. it's the biggest circuit of all.

and so, the result was neither case was appealed on the law, and the position which was contrary to the consistent position of the military and it undermined their ability to have i think an effective enforcement and even a fair enforcement on the policy. so i guess i would ask you why you made that decision. and it's important to me, based on your representation to the court, that i'll understand that you were fully committed to vigorously defending that law, because i think that was your responsibility. it was an oath you took. and i'm having a difficult time of understanding why, even

though it would have been an interlocutory appeal, i know it would have been, but it was an interlocutory appeal of the third circuit case that the supreme court took and promptly reversed their decision. and so i guess i'd just like to hear you state with as much specificity as you can why you felt it necessary not to appeal either one of these cases. >> true, senator sessions, i think that we have acted -- i have acted in the solicitor general's office consistently with the responsibility which i agree with you very much that i have to vigorously defend all statutes, including the statute that embodies the don't ask, don't tell policy.

so take the first circuit case first, where the first circuit upheld the don't ask, don't tell policy and mr. pietrangelo brought a question tho to that case and he was challenging a decision that the government very much approved of, which was a decision that upheld the don't ask, don't tell policy, and we told the court in no uncertain terms not to take the case, and we defended the statute vigorously. we told the court not to take the case because the statute was constitutional. so in that pietrangelo brief that i filed, and it's a brief on which i'm counsel of record, the argument is made vigorously that the don't ask, don't tell statute is fully constitutional, given the appropriate standard

of review and particularly given the deference that courts properly owe to the military. so the pietrangelo brief is a brief and, again, i'm counsel of record on that brief in which the u.s. government vigorously defended the don't ask, don't tell policy and statute, more importantly, and told the court not to take a case which challenged a decision to uphold that statute. now, as to the second matter, the witt matter, as you said, the witt matter is interlocutory in nature. and what that means for people who aren't familiar with these legal terms, is that it means that the case is in the middle and that the government can, after remand, at a later stage, continue to defend the don't ask, don't tell statute in this

very case. now, we engaged in very serious discussions with the department of defense about the appropriate approach here in order to defend the don't ask, don't tell statute, because i agree with you, senator sessions, that the ninth circuit decision undercuts that statute. it makes it harder for the government to carry out its policies under that statute. and the question that we had to decide was whether to challenge that ninth circuit decision, which i think does -- is in real tension with the don't ask, don't tell statute. the question we had to decide was whether to challenge that ninth circuit decision at an early stage or at a late stage of the case. it was a matter of timing.

and we talked a good deal about this, of course, amongst ourselves but also with the department of defense, an we decided that the better course was actually to wait on it and to accept the court's remand. the case is not at all closed. instead, the case is on remand in the district court, to take that remand and in the event that we didn't win the case on remand or in the ninth circuit again, in that event, then have the option to and presumably would take the case to the supreme court to challenge the ninth circuit's holding. and when we did this, we wrote a letter to the judiciary committee. it's called a 530d letter, which is a letter which the justice department writes, whenever there is a moment at which it

does not -- does not contest a decision that is inconsistent with a federal statute, we wrote a 530d letter to the senate judiciary committee, and we basically laid out this explanation. we basically said we still have the opportunity to approach the court and ask the court to take certiorari in this case, and we presume that we will use this opportunity if we don't get the case dismissed in the district court but that we think it's actually better to go to the district court to take the remand and then to come back to the supreme court if it's necessary to do so. and the reason that that approach was chosen was because we thought that it was -- it would be better to go to the

supreme court with a fuller record and with a fuller record about the particular party involved, maybe more importantly with a record that would show exactly what the ninth circuit was demanding that the government do, because what the ninth circuit was demanding that the government do was in the government's view and in -- particularly in d.o.d.'s view a kind of strange thing where the government would have to show in each particular case that a particular separation caused the military harm rather than that -- rather than to view it in general across the statute. and one reason we thought that the remand would actually strengthen the case in the supreme court was because the remand would enable us to show

what this inquiry would look like, what the ninth circuit's -- the inquiry that the ninth circuit demanded would look like and to suggest to the supreme court, using the the best evidence there was, how it was that this inquiry really would disrupt military operations. so that was our decisionmaking process. it was, as i say, a decisionmaking process that we wrote about to congress when it occurred and stated specifically that this was a timing issue for us that we were not going to the supreme court at the earliest possible moment but, instead, waiting. and i should just put one other factor into the mix which i left out along the way, which is that there is a supreme court presumption that cases should not be taken in an interlocutory posture, that instead the supreme court ought to -- the

supreme court ought to wait and the parties ought to wait before asking the supreme court to take a case until the case is sort of well and truly over, when it's not in the middle of things. now, i don't want to overstate that. that's a presumption. it's not a flat rule. it's a presumption against interlocutory review. but it was something that we -- that we weighed in the balance. here we had a presumption against interlocutory review, and we had some good reasons for thinking that our case would be made stronger if we did not take the case in an interlocutory posture but, instead, waited for the remand to be completed before we went to the court and asked the court to review the ninth circuit decision. >> well, i appreciate that position. i will look at it and review it. it does appear, however, that your position was in harmony

with the position that the aclu took, who was on the other side of the case. and i see no harm in taking -- attempting an interlocutory appeal, and i do note that they took it in the third circuit solomon amendment case and promptly reversed and, you know, rendered a decision consistent with the government's position. i think the last refuge of a big government scoundrel is the commerce clause, it seems. everything -- when you have no other hat to hang your -- peg to hang your hat on, you claim it impacts commerce. you cited yesterday the lopez and morrison case a number of times, which seems to defend legitimate -- say that legitimate regulations defended under the commerce clause must, wonder of wonders, deal with economic commercial-type

matters. i guess, first, have you ever commented -- and you cited to senator coburn i think and to others that this could have an impact on his question which dealt with could you tell an individual american how many vegetables they should have for lunch every day or something to that effect. and what's your view -- have you expressed any opinions previously on lopez and morrison? they were very controversial at the time. and do you agree with those 5-4 decisions? >> gosh, i don't think that i've expressed any views in my academic writing or anything i can think of on lopez and morrison. you know, i've given a lot of speeches in my life but, you know, i can't think of anyplace where i specifically addressed

those issues. i think that they are settled law, that they are part of the jurisprudence of the commerce clause going forward. >> could i ask you about that? you said that it's settled law with regard to the gun case, chicago, mcdonald and heller. those were 5-4 cases. does your definition of settled law mean anything more than the normal precedent you would give to any of those kind of 5-4 cases? >> i think i've actually used that phrase with respect to a number of cases which people have asked me about. those are a couple. but -- >> if i was going to use the phrase interchangeably, precedent, which has a certain amount of power, and then you throw out settled law, to the layman seems to be a more firm acknowledgment of the power of that ruling. but i want to know, do you mean

any difference when you use those two phrases? >> i don't mean any difference. what i mean to say when i use those phrases is, these are decisions of the court, they are decisions of the court that are entitled to all the weight that any decision of the court has as precedent going forward that wa have no thought, no agenda, no purpose, you know, remotely no plan to think about reversing any of them, that these are cases that i accept as decisions of the court going forward. >> all right. well, justice sotomayor said a similar thing about heller case, and it didn't bother her one bit to be in dissent in the mcdonald case monday. so you're not saying that you're binding yourself to be a 6-3 vote with now six members of the supreme court on the gun cases, and you're not binding yourself

and suggesting you feel bound by lopez and morrison, are you? >> senator sessions, it wouldn't be appropriate for me to bind myself with respect to any future case that came before me. it wouldn't be appropriate for me in any case to say, oh, i promise that i'm going to take a case like that and do, you know, x, y, z with it. that wouldn't be appropriate. >> well, i t his confirmation hearing. i don't recall anyone disagreeing with him. do you disagree with that? >> no that sounds right. >> thank you. >> i don't think i would need a third round but i would ask maybe a little indulgence to go over if we can't get throught all very quickly. are you familiar with plessy versus ferguson? >> yes, sir. >> i think most people are r it is an 1896 case and it interpreted the equal protection

clause how? what did it say? >> it said that separate but equal facilities were consistent with the equal protection clause. >> okay. now, that's in 1896. and do you know -- are you familiar with justice henry billings brown? >> i feel as though i should be, but i'm going to say . >> you don't want him to be your hero. trust me. here's what he said in 1896. "we considered the underlying fallacy of the plaintiff's argument to consistent in the astion that the enforced separation of the two races stamps the colored race with a become of inferiority f this be so, it is not by reason of ything found in the act, but solely because the colored race chooses to put that construction upon it." now, that was the majority holding, one of the holdings, and it didn' change until 1954.

so to conservatives and liberals alike who believe a precedent can never change a case, this is a good example, i think oh of where the ca can change. 'cause this is what happened in 1954/'55. justice warren. "to separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status and in th community that may affect their hearts and minds in a way unlikely ever to be undone. whatever may have been the extent of psychological knowledge at the time of plessy versus ferguson, this finding is amply supported by modern authority." so if you could, this could be a little bit of a teaching momen nothing changed in the constitution, word-wise, did it? >> it did not. >> so it is the same words, looked at 50-somethin years apart, with a different conclusion. how could the court do that and

be consistent with strict instructionism? >> well, senator graham, i guess a couple of things. the words of the constitution did not change but two things did change. the precedence changed and understandings and circumstances in the world changed. so the precedence clearly did change. brown was not a thunder bolt from the blue. >> it was the last in a line of decisions, right? >> it was the last in a long line of decision and one of justice thurgood marshall's -- his greatest accomplishment was to lead up to brown, step-by-step-by-step, case-by-case-by case.

as an advocate, of course, you can have a strategy like that and he did. by the time the court got to brown, upholding plessy actually would have been inconsistent with a series of other holdings that it had reached over the years. and i do think that that sometimes happens in constitutional interpretation. and it also happens, i mean, we have talked a loot about the ctrine of precedent and about one reason to reverse the decision is when its doctrin support has been completely eroded and i think that is what happened in brown -- >> and i think most americans, if not universal as clo to universal we will ever get as a nation, glad it happened, in this case. now, there's another court decision called r v wade, that's being changed over time.

being interpreted differently over time. the court basically held that before viability, the is right to hve an abortion was of a state-imposed limitations on abortion was almost nonexistent. after viability, it was sort of a balancing test. is that a general statement of roe v wade over time? there's a difference between viability and postviability in the eyes of the court? >> as i understand the law after casey, it's that after vie bit, the state can regulate as it please pleases except for situations where the woman's life or health interests are at issue. before viability, the question is whether there is an undue

burden on the woman with's ability to have an aboron. >> it is fair for the court to consider scientific changes when a fetus becomes viable as medical science evolves? >> senator graham, i do think in every area that it is fair to consider scientific changes. we've -- i've talked in the past about how different forms of technology influence the evolution of the court's fourth amendment jurisprudence. >> i'm glad to hear you say that because just as it would have been wrong to not consider the changes of how society what evolved versus segregation of young children based on race, i hope the court would consider the modern concept of viability in the 21st century and whatever protection you could give the unborn would be much appreciated

on my part by considering science, not your personal feelings because i think it is appropriate r the court to do s so. it is a great institution, some place i couldn't have got in, which would have are been special, because i couldn't ge n. >> i would have taken you. >> not with my s.a.t. scores. i couldn't even play football at harvard. now this don't ask, don't tell policy, you thought to be unwise and unjust. you said that i believe? >> i did, senator graham. >> and y know what i think a lot of americans agree with you, some do some don't. the fact you have political opinions different than mine is absolutely okay and i hope the committee will, in the future, let that concept work both ways. i think the problem that senator sessions has it is one thing to have strong feelings. the policy was not set by the

military, it was a congressional enactment, which you thought to be unwise and unjust. now, i don't doubt your affinity and as mir racial for the mill taefrm you can disagree with the don't ask, don't tell policy and still respect the military. i believe that about you and about a lot of other people. the problem i have is it was the law of the land. did other schools at harvard prevent military recruiters from coming to intervene their students or was it just the law school? >> senator, i honestly don't know the answer to that i don't know what other schools, you know, have employers come and how they do it and i don't know whether any other schools have particular other policies respecting this. you don't know if -- obviously, it wasn't a campus-wide ban because the recruiters did meet with law students somewhere else on campus, is that correct? >> senator graham, the recruiters could have met on campus as wel >> that's what i'm saying it

wasn't a ban. >> and could have be -- >> not at the law school. >> could have met on the law school campus, the only restriction that we put on was that the office of career services couldn't provide assistance. >> which is the place where most students met employers? >> no it is just an office, r i mean, most -- 95% of interviews from employers at harvard law school -- >> here is the point. it is clearly not just an office. it was a political statement that you were making, i think, maybe i'm wrong, but seems to me you were making a political statement. you're not taking the law in your ownand bus you are trying to make a political statement on behalf of the law school that this office is not going to be used by the military because we don't like this policy. is that a fair statement or not? >> senator graham, i think what i was trying to do was on the one hand to ensure military recruiting, on the other hand, to enforce and to defend the school's very long-standing anti-discrimination policy. so, it wasn't me making the

political stament. it was me as dean of the law school, and that's what i was, i had an institutional responsibility. as dean of the law school, trying to defend an anti-discrimination policy that had had existed for, i don't know, 25 years. would it apply to the catholic church if they wanted to come and recruitawyers from the law school 'cause they don't have women priests? >> well, wait we enforce this policy is if an employer comes, we give the employer a form and the form basically says i comply with the following policy and it says i will not discriminate on the basis of and then it says something like race and creed and gender and sexual orientation and actually veteran status as well. and if the employer signs the form, the employer can get the services of the office of career service. and if not, not. >> okay. it wasn't a political statement on your behalf at all? you weren't ting to at the

time world what harvard law school thought about this policy? >> it was not, senator graham. i was just tryi to defend a very long-standing and -- >> it would have been okay with me if it was, i just disagree with you. i will take you at your word. now, you are an advocate for the -- you are a lawyer who played anned a very cat role in the clinton administration regarding formulation of policy, is that correct? >> i was two things in the clinton administration, was a lawyer for about half the time and i was a policy person for about half the time. >> okay. well, when it came to the partial-birth abortion debate, there's a memo we have here that talks about if certain phrases were used by the -- what was the group, acog, what was the acronym? >> the american college of obstetricians and gynecologist. >> as i understand it they were going to issue a statement that you thought would be a disaster. and you wanted to get the full

statement into place. was that becau you were worried th if you didn't get what you wanted in place, the court might seize upothat statement and make a different ruling no, sir. it was not. i mean, my -- this was. miss kagan, i'm shocked that you say that because if i believe the way you do, that's exactly what i would want. if i really didn't d believe that partial birth abortion as being proposed was too restrictive and i think you honestly believe that, that you wanted to have the broadest definition possible when it came to partial birth abortion to allow more cases rather than less, that i would have been motivated to get the language most favorable to me. and are you saying you weren't motivated to do that? >> senator, i was working for a president who had clear views on the subject >> but you were trying to take him to an area where he even felt a bit uncomfortable.

you were advocating from what i can tell, a broader vi of how partial birth abortion would be interpreted. that when you met with the professional community, the doctors, they informed you early on in a private meeting, according to the record we have, that there would be very few cases where an abortion would be allowed under the way this thing is written. and somebody with your background and your view of this issue to me that seemed disturbing and you were trying to change that and broaden it. is that not true. >> with respect, senator, it's not true. i had no agenda with respect to this issue. >> wait a minute. i certainly have an agenda when it comes to an bortion. i respect the courts, but i'm trying to push the rights of the unborn in a respectful way. you can be pro-choice and be just as patriotic as i am. you can be just as religious as anybody i know but that's the point here. it is okay as an advocate to have an agenda.

i think alito and roberts had an agenda. they were working for a conservative esident who was pushing conservative policies. it just is a bit disturbing that you, quite frankly, say you don't have an agenda when you should have had. if i'm going to hire you to be my lawyer, i want you to have my agenda. i want it to be my agenda. >> i was trying to implement the agenda of theunited states president whom i worked for. >> did you have a personal belief that partial birth artion was as being proposed was too restrictive on a woman's right too choose? >> i was at all times trying to ensure that president clinn's views and objectives with respect to this issue we carried forward. and president clinton h strong views with respect to this sniper here's the difference between being a lawyer and a policy person in a political shop. i would -- i just want totry the best i can, it's okay if you

did. i expect tat presidents are going to hire talented ntellectually gifted people who think like they do that will push the envelope when it comes to the law. and the record is replete here on this issue and others, you were pushing the envelope in terms of the le side of the aisle. i think the record was replete with alito and roberts that they were pushing the envelope on the other side. and that may make you feel uncomfortable. i hope it doesn't. i just believe it to be true and you don't agree with me there? >> senator graham, the two of us have agreed omany things over the course of this hearing. >> we don't agree on this. >> we don't agree on this. what i tried do was to implement the objectives of the president on this issue at the same time to provide the president with the best legal advice straight objective as i could. >> fair enough. >> and when i became a policy person, to enforce and to insure

that his policy views were carried out. >> i just quite frankly am surprised to hear that because if i believed the way did you and i had the opportunity to serve at that level, i'd do everything i could to push the law in my direction in a way that was ethical. i didn't see anything did you that was unethical. i did see an effort on your part to push the law in a direction consistent i think with the clinton administration and your political beliefs, which is absolutely fine. ta activist judge is something none of us like. apparently. nobody on that side likes it and nobody on our side likes it. help me find one. >> i'm sorry? >> help me find one. can you think of anybody in the history of the united states that was ctivist judge? pause we don't like these people. it seems to be an activist judge is somebody that rules the way we don't like. and it's getting to to be no more sophisticated than that. i'd like it to be more

sophisticated than that. so what is your definition of an activist judge? >> senator graham, i think my definition is somebody who doesn't take three principles to heart. the first principle is deference to the political branes in making the policy decisions of this nation because that's who ought to be making the policy decisions of this nation. the second principle is respect for precedent, precedent as a doctrine of constraint and humili humility. and also stability in the law. and the third principle is deciding cases narrowly. deciding them one at a time, deding them on narrow grounds if one can, avoiding constitutional questions if one can. >> well, our guys say that justice marshall was an activist jge. do you agree with that? >> senator graham, i'm not going to characterize any justice as an activist judge, as a

restrained judge. i think the best i can do is to set forth the principles that i think are appropriate and to say that if i'm so lucky if i'm lucky enough to serve justice kagan woman abide by those principles. >> yeah, and i totally understand the dilemma you're in, but we keep using that term. and justice mar shashl will go down in history as one of the icons of the law and one of the greatest justices in the history of the country even though i disagreed way lost his rulings. that's the way it should be. if our people say that's activism, so be it. i hope justice roberts, which i ink is one of the most gifted intellectually gift people i've ever met is being called by my colleagues on the other side for two days now an activist court. andwe'v got somebody who is wanting to be on the court. can you name one person in the united states that you think would be an activist judge

living or dead? >> you know, i have a feeling tha if i do that, i'm going to end up doing many things that i regret. >> well, here's what i regret. i regret all of us throwing these terms around without any definition to it other than we just, you know, we believe the way they judge is just not the right way. now, judge barack, this guy's not an activist judge, i don't know who would be. he's an israeli judge so maybe we shouldn't talk about israeli activism but i'm going to go ahead and do it anyway. senator kyl doesn't mind. here's what he said. the judge may give a statute a dynamic meaning that seeksings to bridge the gap between law and life's changing reality without changing the statute itself. the statute remains as it was, but its meaning changes because the court has given it a new

meaning that suits new social needs." what the hell does that mean? >> i think it means that the court can change a statute and i think that that's wrong. >> i think the fact that you don't like what he said makes me feel better about you because this is so nebulous and so empowering to a judge, it would make an elected official like me feel very worried that the judge doesn't understand the difference between going out and getting elected office and reviewing policy made by elected officials. >> now we're back to agreeing, senator graham. >> we're going to end it there. i wish you well. you have handled yourself well. we have some differences. i think the hearings have been on the margins better but not a lot better than they've been in the past. been the -- i wasn't trying to trick you. i think as an advocate in the clinton administration and other

places you have tried to push the law in an ethical way. in a particular way consistent with your philosophy and your political leanings. and i just want my colleagues to know that is okay with me. the thing that would not be okay with me if i thought you were unethical and you did it in a way outside the process that we call the rule of law. so i wish you well and i know your family's proud of you and i think you've accorded yourself well for the last several days. >> thank you, senator graham. >> thank you, senat graham. let me -- i don't think we need to do this but let me just go over your 2009 confirmation hearings when you were asked about the partial birth abortion decision. you repeatedly stated that you would respect gonzales versus carr hart which the court rejected a facial challenge to the federal partial birth abortion act based on stare

decisis. that's what you said in the last hearing. i assume that's your position today? >> absolutely, senator, that the gonzales case is settled law entitled to all the precedent of settled law goinforward. >> and i just really want to make a personal comment asdy in my oning statement. many of us believe role v wade is a matter of privacy and a woman's right of choice and is not reallyaking sides on abortion, not whether you favor or oppose abortionshether you favor a woman's choice and the right of privacy and what is the appropriate for the government to play in those types of decisions. with him senator graham sill here, i want to go back to one the points senator graham raised on enemy combatants and their rights to certain proceedings. and i think i'm quoting him correctly when he said if we took the war on terror and made it a crime, we'd have a problem for our country. i think that sort of misses the point. as solicitor general.

>> think the point that the administration was seeking is that there are certain rights in our criminal justice system that will defendants are entitled to. they're different under military commissions for enemy combatants but that we have the right, not the enemy combatant, to determine which venue we can bring about the best justice. if we think that an action by enemy combatant was criminal, we want to use an article 3 proceeding and think we can get a better result, why would we want to take away that right. why would we want to limit our ability to hold a terrorist accountable for their actions, whether it is as an enemy combatant in a military commission or whether it's in an article three court under our criminal code. am i -- was that the position that the administration was taking when you were solicitor general or you are still solicitor general? >> i'm going to y the same

thing to you that i hope i said to senator graham which this is not a set of policyecision thatds solicitor general's office or that i personal little had anything to do with, and i feel uncomfortable discussing that. i think that these are questions that are better addressed to the people who are making policy within the justice department on this issue. >> and i respect that. i just really wanted to clarify the choice. it's not a choice between giving enemy combatants certain additional rights. it's a question of where we believe we could hold a terrorist more accountable. >> if i could, senator, i guess that was a question for her but i'll answer it. see if you disagree with my answer. i really have no problem using article three courts in the war on terror. in many cases they can be a better venue. i think military commissions can be a good venue to prosute war crimes, but the hybrid, the third bket as we all talk

about are those enemy combatants that the court has deemed to be an enemy combatant but the evidence for whatever reason is not subject to criminal scrutiny whether it be a military commission trial or an article three trial or the evidence may be such that you under the rules of discovery of both proceedings you couldn't divulge it without hurting national security. it's in those caseshe 48 that the obama administration has identified that the congress needs to weigh in with the executive branch to understand that the law of attention is the only valid theory that you can hold someo in that third category. and when it comes to quite frankly the treatment of prisoners, it becomes about us, not them. i love the geneva convention as a military lawyer. it is not an individual right. i want my country to abide by it to the fullest extent possible and win this war within our values. when it comes to having your day

in court a to whether or not you're an enemy combatant, i believe an iependent judiciary should look over the military's shoulder and have you to prove to an independent judge that the military's right, that you are an enemy combatant. i do not believe our laws should allow enemy prisoners to bring lawsuits against our own soldiers, medical malpractice cases ainst doctors or sue prison guards because they don't like the quality of the food. that to me is not consistent and that's what i oppose. >> i thank you. we've had this discussion in our committee, and i think solicitor general kagan you are correct. these are issues we're going to have to grip with as the legislative branch of government, hopefully working closely with the executive branch. the bottom line is that those who commit acts of terror against the united states, we need to have an effective way to bring them to justice whether it's within the military commission or whether it's within our article three courts and we should be able to choose the best venule for holding

those terrorists accountable. i know you had exquhang senator feinstein on the interplay between the establishment and free exercise claus. and i want to talk a little bit more about that because i related to your opening statement when you talked about your grandparents coming to this country and one reason because of the religious freedom of this nation. which was so dominantly lacking in europe. the sameeason brought my grandparents to this country. so the freedom of religion is a critical part of this country's tradition. when we discuss the free exercise and establishment claus with senator feinstein when you did, you said there is some play in the jointses for the government to act to make reasonable accommodations for religion consistent with both the free exercise and establishment clauss. then you mentioned the lemon three-part test from 1971, which

you correctly noted has not been overturned but has not always been used by the court either. i want to focus on the test used by justice kennedy in the court opinion of lee versus wiseman wilhe struck down as unconstitutional school sponsored prayer at a public school graduation ceremony. i guess my question to you is what special protections should students have under the establishment claus? >> well, what senator kennedy focused on i think i saided to senator feinstein that some members of the court have used on certain occasions a coercion tes the question as to whether a particular governmental action coerces a person in his or her religious beliefs. and the levy-wise man case is one that does use that coercion test. in a way that provokes strong disagreement, as well. the quell about whether that

graduation prayer did coerce students in a constitutionally meaningful manner. senator kennedy, a majority of the court held that it did. as the court's precedent has come down, it seems a highly fact specific inquiry. certainly the coercion test is used most often when it comes to children. and the court, you know, the court's cases essentially see a difference between coercion of adults thinking that adults can kind of stand up for themselves and coercion of children where there's a greater fear of the government's impact and coercive impact. i think that levy weiseman reflects that. but it is a contentious area in the law with some people i think

that that case say good example of the way in which people can look a a >> confirmation hearings continue this afternoon. you can find -- follow all the hearings live. you could find out more about elena kagan on our website. you can watch all of the confirmation hearings and the time as well as video of her other appearances on c-span. all that and more at c- span.org/kagan. today on c-span, "washington journal" is next. that is followed by live coverage of the house and debate on unemployment compensation. in about 45 minutes, we will talk with cones