our series, "states in the red," looking at new york yesterday we look at california. you can find that on-line c- span.org. that is all for "washington journal" today. we will see you tomorrow morning at 7:00 a.m. eastern time. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010] >> the labor department reports the unemployment rate to its lowest level in almost a year in

june. employers cut when a 25,000 jobs last month. the losses -- employers cut 125,000 jobs. remarks now from president obama. he spoke about the new numbers as they were released this morning. this is about five minutes. >> good morning, everybody. before i depart, i would like to say a quick word about the state of our economy. we receive the june employment report. 21 to 25,000 temporary census jobs. -- to 1 25,000 temporary census jobs. our economy has created nearly

600,000 private sector jobs this year. that is a stark turnaround from the first six months last year when we lost 3.7 million jobs. make no mistake -- we're headed in a right direction. as i was reminded of a trip to wisconsin earlier this week, we are not headed there fast enough. the recession has the best a haul of about 8 million jobs. we continue to fight headwinds from volatile global markets. we still have a great deal of work to do to repair the economy and get the american people back to work. that is why we're continuing a relentless effort to keep this recovery moving. we have new infrastructure investments. investments that will create private sector jobs and make america more competitive.

i have been joined here today to announce the department of commerce and agriculture will invest in six to six new projects across america that will bring reliable broadband internet service to communities that have little or no access. we expect these projects to create about 500,000 jobs around the country. once we emerge from the immediate crisis, the long term economic gain to communities that have been left behind will be a measurable. these investments will benefit tens of millions of americans. more than 685,000 businesses, 900 health care facilities, and 2400 schools across the country. when communities adopt broadbent access, it can lead to hundreds of thousands of new jobs. broadband can remove geographic

barriers between patients and doctors. it can prepare america ought to run on clean energy by helping us upgrade to smarter, stronger, more secure the electrical grid. we are investing in our people and in our future. we are competing to make sure the jobs and industries take root right here in the united states. we're moving forward. to every american who is looking for work, we will keep doing everything we can. i will do everything in my power to help our economy create jobs for all people. sunday is the fourth of july. america has never backed down from a challenge. we have faced our share of tough

times before. but we do not flinch. we dig deeper and compete, and we win. it is in our dna. it will bring us through these tough times to a brighter day. i want to say happy fourth of july to everyone. i want paratroops overseas to know we're thinking of your bravery -- i want our troops overseas to know we're thinking of your bravery. thank you, everybody. >> coming up on sunday, c-span will air highlights from the first three days of the confirmation hearings of elena kagan.

c-span.org, we have created a kagan hub, we can watch the hearings in high-definition. you can watch the previous c- span appearances of elena kagan. real-time updates with explanation of legal terms, it leads to documents relating to the hearings and more. you can follow the hearings on twitter and access additional documents and more. you can purchase dvd copies for supreme court nominee taken, go to c-span.org/videolibrary. click the "buy now" button.

witnesses who supported an opposed her nomination testified. this is about four hours. >> i apologize to anyone who has been waiting patiently. we have a former colleague, senator robert byrd, whose body is lying in repose in the senate, an extraordinary

occurrence until a few minutes ago. we decided not to hold hearings during that time. there are a number of panels. any one of you have a statement? we will put the statement in the record. you can submit your statement. all of it will be in the record. i would urge you to keep it in the five-minute limit. senators will be recognized for five minutes each to go around. five minutes each to go around. i would ask all of you to stand.

sorry. just the witnesses. i'm beginning to feel important, at that point. i've never had a room stand before. colonel, i know about your shoulder. you should not worry, we're not going ask you to raise your right hand. if you repeat after me. do you solemnly swear the testimony you will give in this matter is the whole truth, nothing, but the truth so help you god? all you have to say is "i do." thank you. frankly, i can't imagine any member of this panel or the other panels dng anything, but. our first wiess miss leadbetter, lilly leadbetter served the odyear tire and company plant in alabama for more than 19 years. she was the plaintiff in the

employment discrimination in the goodyear and she's a tireless advocate for workplace fairness and that had been kept hidden from her until well after she was out of retirement. the lilly leadbetter, please go ahead. >> thank yo mr. chairman and members of the coittee. my name is lilly ledbetter, and it is an honor to be here. i am not a lawyer, but i know t things. knowhat the supreme court decisions have a profound effect on everyday americans, and i've learned tt who is on the supreme court makes all the difference. i never in a million years would have thought thatone day i

would have in my fate decided by the supreme court, but i did. it all started in 1979 whe goodyear hired me to work as a supervisor in their plant in gaedon, alabama. i worked hard, and i was good at my job, but goodyear did not make it easy. i was only one of only a few fale supervisors and i faced discrimination and sexual harassment by people who didn't want women working there. at the end of my career someone left an anonymous at work compared how much i earned compared to male managers. i was earning 20% less than the lowest-paid male supervor. on the next day i filed a complaintith the eeoc. goodyear tried to say i was a poor worker and that's why they

had given me smaller raises than the m, but after hearing all of the evidence the jury didn't believe them. it found that goodyear had discriminated against me because i was a woman. that was a good moment. the jury wasn't going to stand for a tional corporation paying me less than others just because of my sex. but then by a singl vote the supreme court took it all away. five othe justices said i should have complaine after the first time i was paid less than the men even though i didn't know whathe men wereetting paid and had no way to prove that it was discriminatory. the court said that once 180 days' pay, the smaller payccks no longer counted as diskrim nait nation, but it sure feels like discrimination when you're on the receiving end of the smaller paycheck and trying to support your family with less money than the men are getting for the se job. goodyear continues to treat

females like second-class citizens and worrs today because my pension and social security is based on the amount i earned. goodyear gets to pay my extra pension as a reward for breaking the law. justice ginsburg hit the nail on the head when she said that the majority's decision didn't make sense in the real world. peop can't any around asking their co-workers how much money they're making and in lots of places th could get you fired. plus, even if you know that some people are getting paid more than you, that's no reason to suspect discrimination right away. you want to believe that your employer is doing the right thing, and it will all even out down the road and anyway, it's hard to fight over asmall amount of money early on, but the majority didn't understand that or didn't care. how it could have thought congress would have intend the

law to be so unfair, i'll never know. so congress had to place a new law to make sure what happened to me wouldn't happen to others in the future. my case shows at who gets appointed to the supre court really makes a difference. if one more person like justice ginsburg earjustice stephens were on the court, one more person who understands what it's like for ordinary people living in the real world then my case would have turned out differently. since my case i've talked to a ot of people around the country. most can't believe what happened to me and wan to make sure tha something like it doesn't happen again. they don't care if the justices are democrat or republins or which president appointed them or which senators voted for them. they want a supreme court that makes decisions that make snse

that's why these hearings are so very importan we need jusce who understand that law must serve regular people who are just trying to work hard, do right and make a good life for their families, and when the law isn't lear, jusces need to use some common sense and kp in mind that the people who write laws are usually trying to make a law that is fair and sensible. this isn't a game. real people's lives are at stake. we need supreme court justices who understand that. thank you very much for allowing me this honor. thank you, sir. >> thank you very much, miss ledbetter, you've been before this committee before, and i always appreciate you bein here. >> our next witness is jack gross. he recently retired from the bureau of financial services for

29 years. he was the plaintiff in fpl financial services inc.. the supreme court filed a 5-4 dision and the case in 2009 made it more difficult for empyees to prove they were victims of age discrimination. i advocate for the passage in protecting older workers against the discrimination act. please go ahead, sir. >> tha you, chairman leahy, ranking member sessions and committee members for inviting me here to tell my story and state my position regarding the outcome and plications of the supre court decision in my case. it's an honor to be given this opportunity to speak out. n behalf of millions of older workers, all too many of whom have faced discrimination in the workplace. my story is being duplicated

daily across the country, and my case has been cited hundreds of times to deny remedies to vicms of many other non-title 7 forms of workplace discrimination. i certainly never imagined that my case would end up here when it all started over seven years ago or that it wouldhave such far-reaching implications. very briefly, myemploy, farm bureau insurance, or fbl dismissed employees 50 or ov and had supervisory or higher positions. i was included in the demotion even though i had 13 consecutive years of perfoance reviews in the top 3% of the company. my career and contributions were exceptiol and very well documented for the jury. with very strong evidence of age discrimination, i filed a complaint and two years laer a federal jury spent a week listening to all the testimony, seeing all the evidence and being instructed on the adea,

your law. the verdict came back in my favor, and i thought the ordeal was over in 2005. as we now know it was just the beginning. fbl appead a the eighth ciuit overturned my verdict because i had the next motive, and they said that required so-called direct evidence instead of just the preponderance of circumstantial evidence that we had provided. with four decades of legislation and core precedent overelmingly on our side, we appealed to the supreme court and we were elated when they accepted it on that one issue on the requirements. at the hearing, however,the supreme court broke with thhir n protocol and allowed the defense to advance an entirely new argument, one that had not been briefed nor were we given an opportunity to prepare a rebuttal. it was a bait a switch on us. ignoring that queston to use my

ca as the vehicle forhe clear intent by creating a new hierarchy of workplace discrimination. those specifically covered in 2007 were now at the top and required the standard approved while all letters including age and require a new and significantly higher standard of proof. i believe congress, the branch of government closest to the people clearly intendedto abolish discrimination in the workplace and not to create exceptions for it or to stratify it. we came to d.c. last june believing the highest court would uphold a rule of law and apply it consistently to all areas of discrimination. we were disappointed and quite frankly disillusioned by putting theirrrogance ahead of the clear will of congress and their own precedence. since the supreme court's decision i've been distressed

overhe collateral damage associated bee other i hate my name associated with the pain and injustice now being inflicted on other victims of discrimination because it is now nearly impossible to provide the level of proof required by that decision. my case went largely unnoticed by theedia and the public, but its tentacles will impact the lives of millions of workers. i have to keep reminding myself that i'm not the one who changed your law, five justices did. by that i'm not labeling the cot a bad court, but they did getit entirely wrong and it is unjust, mistakes can be fixed and we can mo on. >> congress has a long history of wking together on a bipartisan basis to create and maintain a level playing field in the workplace. the adea is one example. i urge you on behalf of millions of workers who only want an equal oppornity to revive the bipartan spir and the passed

the protecting older workers. soon, before more constituents back home are hurt by the new court made law. over the decision to pursue this case, as much as i hate discriminati and all its forms i knew i would be burning my career bridges behind me once i ran it as litigious. my wife marlene and i prayed about it and decided it needed to be done and left the outcome in god's hands never expecting that he would bring us here. if my experience eventually prevents anyone else from having to endure the pain and humiliation of discrimination, i will always believe that this effort was part of god's plan for my life. thank you. >> thank you very much and thank you for coming here again. jennifer gibbons is with the leading environmental advocate

organization from prince william sound, alaska. i went there once years ago with former senator ted stephens. it's a beautiful area. she liv in a remote fishing town of cor coach a the site of the 1989 exxon valdez oil spill. she's informed the public about the ongoin environmental, economic impacts of the "exxon valdez" oil spill. miss gibbons, go ahead. >> thank you, mr. chairman and comm members. i am honored to be here today and speak briefly about the still ongoing impact to people in my community and across prince william sound. i amyself and not an exxon plaintiff. the precedent-setting decision in that case equated exxon's punishment at the time, the most profitab corporation in the wor to a loss of individual working men and women after 20 years of litigation. when the decision was announced

in my town, the streets were silent and people were somber and they just did not speak for days. you walked into the local breakfast dive which is bustling with actity and fishermen talking about the upcoming season and it was quiet. people worked days, they stared at the wall. there are five key messages that i wish to deliver to you today and ty're important with wh's going on in theulf. above all, you cannotlean up an oil spl, period. second, the more than 32,000 victims of the "exxon valdez" spill were never made whole as exxon promised regardless of compensatory and punitive damages, life as they knew it was permanently and irrevocably altered. third, oil persists in prin william sound this very day and you don't need a svel to find it. fourth, there's a pervasive sense that the government and courts have failedhe people to the point that many questions are relevant and the questions

go beyo the fundamental right to justice. they question itsimple existence. fifth and perhaps most sadly, almost 20 years to the day it is as if there's an echo coming from the gulf. the pple of prince william sound stand in solidarity with the people of the gulf and i don't know a single person who is surprised by what has happened. we tell them clearly, don't believe a single word that bp is telling you. do not expect anyone to hp you and sadly, don't hold your breath when it comes to the courts. i'm going to speak very briefly today to some of the impacts their four primary areas, environmental cultural, economic and social, and i'm going to skip most o those and just focus on the societal impacts. one of the least undersood impacts of the exxon valdez spill is the impact of litigation that continued for 20 years. victims are promised in exact words and we're hearing similar words today that you're lucky it was exxon. that exxon will make you whole,

that the litigation will not go on for 20 years. after the spill there were divorces, suicides, there were families that lostverything and a lot of people left. men speak to this very day of the psychological struggles due to losing their identity as family provider. one fisherman, now 50, described to me as sinking into a mental abyss over tears following a spill when his wife was becoming the sole breadwinner that he fantasizeabout killing her. >> another fisherman declaring he had recently been contemplating suicide because of his feelings of worthlessness and about that same time a woman in cordova told me the endless court case made her feel that she simply did not exist as a human being. personal resource loss, chronic stress, anxiety, social disruption. these have been studied by highly credential social scientists in our towns f 20

years and these same scientists are now in the gulf. because exxon has such deep pockets which expanded exponentially over the past 20 years, they can litigate endlessly, wearing down their victims who even as they std together were dwarfed. exxon knew that if they played it as longs they could memories would fade, the context could be changed and they could win big. in 2008 a representative for exxon speaking in the media called the punitive damages as originally awarded, quote, an excessive windfall for the platiffs. exxon fought hard to avoid precedentnd the cruellest irony for the plaintiffis th a precedent was indeed set, one at diminished them further. to be draged through litigation for 20 years is to be victimized over and overagain. the burden of proof is always on the victim and we are now hearing this from bp. they will pay all legitimate claims. we in prince williamound know exactly what that means. somewhere along the way america

has forgotten that corporations do not own the air or the lakes or the rivers or the seas. our privilege to use them has been granted on behalf of millions of citizens who do,in fact, own them and the business community is not living up to tha privilege. how often is the root of disaster a cost-cutting profit margin issue? citizens need a better way of ensurg that people and business take the time to do what is right. i support the big oil polluter act, and i believet's time to update open 90. today,n prince william sound we are working to move on, and it'been a long haul, but the journey is just beginning for the people in the gulf. i think elena kagan seems like a fine nominee to the supreme court. she clearly knows the lawnd she has a passion for it, and she wants the job. i just wish the nomination process was more about thinking and thoughtful discussion and less about sort of a silly

pursuit of the aha moment. you know what they say, that it's triotic. thank you. >> thank you very much, miss gibbons. our next witness is an army veteran deployed to afghanistan in 2003 and 04 as a member of guard.lifornia army nional he has served as director of military outreach for the foundation and is a native of been >> thank you for the opportunity. my father, a combat veteran,

asked me to join the army when i was 16. he said you owe it to your country and that you should serve. as a college freshman, my daily walks me the question what learning the art of the ship -- never mind the gratuitous jabs of wearing the uniform on yale's campus. i was told that i should not wear that uniform to class, and i decided to speak out. trips to washington, d.c., along with lots of work gave rise to act.assage of the rotc i cared deeply about the republic. having worked closely with a

legislative team to craft the amendment, i could speak to legislative intent. the goal is to renew support on campus. as the unanimous ruling reflects, in order for a law school to receive federal funding, the law school must offer recruiters the same access that it provides to the non-military recruiter receiving the most favorable access. claims that dean kagan comply with the solemn commitment are factually false. she admitted to breaking law in a letter she wrote to the harvard law school community. noe court's decision meant injunction applied. my hope was that the department would choose not to enforce the solomon amendment."

hope is no method. her hope demonstrates its total disregard for the rule of law. disregard for the rule of law. second, separate, but equal is quite simply not equal. full-time students who acts part-time volunteers will never be able to compete with harvard law's paid full-time staff and the institutional mite it brings to bear. as theharvard law school veterans association indicates, quote, we possess neither of time, nor resources nor advertise extensive for outside organizions. illustrate this point another way, image dean kagan at the lunch counter. what she said to the military, sure, you're welcome here, but would you be so kind as using the back door by the garbage. you don't mind eating in the kitchen, dou you? >> tohe americans who hold

unfavorable views the military, most favorab mean particularly in a post-9/11 environment that dean kagan would have harvard law class rm each smefter and encouraged every eligible young adult to take the oath and support and defend the nstitution of the united states against all enemes foreign and domestic. to defend the barriers the military recruiters di't suffer or military recruiting didn't suffer completely misses the pont. a consistent policyf institutional support, namely most favorable access that the solomon amendment demand would increase the ranks of those terested in serving. just imagine how many more of the school's 1900 student would answer the defense department's call if they were asked as routinely by other employers. they represent all, but the most bye but serving. i would not have join the army if my father had not encouraged

me to do so. clearly aye estranged the students of harvard law school from the military. dean kagan's actions deem the military not worthy so much as to gather up the crumbs under harvard's table. in a during a time of war after thousands of innocent americans were murdered on our soil, all the defense depament humbly requestewas equal ccess. neither dean kagan and harvard is above the law, evenhough they acted as though the are. as to the text of constitution and the laws and her ability to judge impartially especially when she's presented legal claims that do not suit her eological tastes. what signals do her actions at harvard law school send? dean kagan's rusal to make these use -- the american peoe who overwhelmingly support it and not just now, but

potentially for decades to come. thank you. >> thank you very ch. did i pronounce that correctly, sir? he is the executive director of vets for freedom, an infantry officer in the massachusetts army national guard and an iraq war veteran. he has a b.a. fromprinceton university and from john f. kennedy school of government. all correct? >> yes, sir. >> thank you. please go ahead. >> chairman leahy, ranking member sessions and other members of the committee, thank you for the opportunity to be here day. it's a privilege to take partn these proceedings. my nye name is pete hegseth, an organization of iraq and afghanistan veterans dedicated to supporting our war fighters and their mission on the battlefield. i received my commission from printon university in 2003 and has since served two tours in the army. the first in guantanamo bay, cuba and the second in iraq with the 101st airborne division.

the infantry captain with the massachusetts army national ard and a graduate student at harvard university. i'm as a citizen and a veteran and do not speak at all on behalf of the military, but i'm going to start with the bottom line up front as we do in the army. we're a nation at war. a nation at war with vicious enemy on multiple fronts. i've seen this enemy first hand. as have ecious few from my generation. the enemy we face detests and seeks to destroy our way of life while completely ignoring and exploing, for that matter, the rule of law. this context motivates my testimony today. i've knot serious concerns about ela kagan's actns toward the military and her witness to myopically focus preventing the military fromhaving institutional and access to top-not recruits eight ti of war. i find her actions tord military recruiters at harvard unbecoming a civic leader and

befitting a nominee to the urz supreme court. miss kagan is clearly a capable academic and the president has a right to choose who he pleases, but in replacing the only remaining veteran on the supreme court in justice john paul stephens, how did we reach this court in this country when we're nominating a person who unapologetically obstructed the military at time of war. she used her position of authority to impede rather than empower the warriors who have fought? who have fallen for this country. i know a number of my fellow veterans will testify to miss kagan's personal support on harvard's campus and miss kagan has had good things to say about the military which i appreciate, but for my money, actions always speak louder thanords and miss kagan's actions for recruiters, with ws raging overseas undercut the military's ability to fight and win wars and they trump her rhetorical explanning as. general david petraeus calls counter insurgenessy a thinking

man's war. it takes the best america has to offer. in 2004, as you've heard many times already, miss kagan took the law ito her own hands in defense of federal law. she can encourage students to protest and impose the prence of military recruiters. these actionsoincided with guantanamo bay, cuba. and it's a legal maze. would not the legal situation there and in the courtrooms in iraq and afghanistan be better o with participation of lawyers of harvard law school caliber and don't we believe the best and brightest should be encouraged to serve? in response to this critique, miss kagan has reached her -- the number of military recruits actuay increased during her nure. let's be clear about that. it increased in spite of miss kagan, not because of her. but i ask a more important

question, would that number not have been even higher had she supported recruiters rather than actively opposing them. to be fair, i don't begrudge miss kagan's opposition to the so-called don't ask, don't tell pop however hefierce and activityist policy, was unnecessarily focused onhe military. in e-mails to students and statements to the prss, miss kagan slammed and i quote, the military's discriminatory recruitment policy. yet at a legal scholar shenows better than that. she knowshe policy she abhor is not the military's policy, but a licy enacted by congress and imposed on the military. in fact, after the law was passed miss kagan went to work for the very man who signed don't ask, don't tell into law, present clinn. for h to call it policy is dishonest and her opposition to military recruiters at harvard law school had the effect of

shooting the ssenger. likewise, while miss kagan sought to block full access to military recruiters she welcomed to campus numerous senators and congressmen who voted for the law she calls, quote, a moral injustice ofhe first order. additionally harvard law school has three ak chemmic chairs endowed by money from saudi arabia, a country where bing a homosexual is a capial offense. rather than confront the true legislation or take a stance with a country that executes homosexual, miss kagan zeroed in on military recruiters for a policy they neier offered nor emphasiz emphasized. in granting a lifetime aye appointment to someone who when itattered most treated military recruiters like second-class citizens, i urge you to consider this as you consider misskagan. thank you for the opportunity to address this important topic. >> thank you very much, captain.

and thomas moore is a retired colonel and vietnam teran. he flew 85 combat missions in vietnam and they were over north vet yam where he spent over five years and was released with operation homecoming in 1973. he received his ba from capital university and from the unersity of notre dame. please go ahead, colonel. >> thank you, chairman leahy and senator sessions and members of the comttee for the opportunity to testify before this committee. i would like toec press my concern regarding t nomination of miss kagan to the supreme court for the following reasons. some of them are referring ba to some of the reasonsy colleagues have mentioned as wl. chief among them is that she has demonstrated a strong bias against the military, parcularly while deanof the

hafb ar law school, largely over policies concerning the eligibility of homosexls to serve in the military. as we heard in 1993 congress passed and president clinton signed section 654, among other things, the law provided th the administration could omit ret choirment at persons joining the military make any rerence to their sexual orientation, a policy that became to be known as don't ask don't tell. in 1995 miss kagan joined the clinton administration as a associate counsel, but i know of no policy that she had with don't ask don't tell with whether clinton. when she was appointed dean of the harvard law school in 2003 she began to udly condemn the law calling it a profound wrong and moral injustice of the first order, disregarding the fact that the 1993 law was approved by strong bipartisan majorities in congress. she also knowingly defied the

particular law that we've heard about the solomon amendment which concern military recruitment. as dean, miss kagan treated military recruiters as second-class citizens and she did not allow the military to recruit an equal basis and called on her students to criticize military personnel. as we've heard on some occasions, she has expressed support for those in uniform, but such superficial gestures could not mitigate her official actions. she apparentlyas encouraged by a ruling in 2004y the third circuit court ofppeals that the somon amendment was unconstitutional, but this court had suspend its own ruling pending review by the u.s. nevertheless, in violation of the solomon amendment they restricted military reciters at harvard law school. in 2005 s escalated from hostile words toctivism and claiming harvard law could b military recruiters because it

barred all recruiters who discriminated against homosexuals. in 2006 this argument with the circuit court ruli was struck down by the supreme court unanimously. even the most liberal-minded justices rejected miss kagan's decision. her theoriesere clearly not what congress had in mind. she later acknowledged that her action were not justified but said that she had acted anay in the hope that the department of defense would not enforce the law. the issue here is bias and miss kagan's record reveals a persistent bias at least regarding the military. as a citizen, i cannot appoint the justices which law they wish to follow in hopes they would not be enforced. an activist justice would not defer to the other branches of government, particularly the congress. it is more qualified to act o issues concerning the military

and whatvidee is there that misskagan has shown an understandi of the defense department's position regarding homosexuals in the military. the 1993 law clearly states why homosexual actity in the military is harmful to its mission. while stressing tat the military is a specialized society, subject to special la that would not apply to the citenry at large. those who don't understand the special nature of the military should not be handed autrity to make importance decisions that affect it, and i question whether miss kagan has consi consistently applied her principles against homosexuals. her principles did not come to playhen president clinton spoke at harvard's commencement or when a member of the saudi ruling family, a person in a position to influnce the policy in saudi arabiawhich executes homosexuals opened a school on campus and miss kagan did not

lift her voice against that. lastly, i would thinkthat a person so opposed to rules governing the military as miss kagan would encourag rather than hinder participation in the miliry by her graduates. so they might be part of the composion of the military's leadership and thus wou influence military policy. it is unfortunate that miss kagan has the wisdom to demand the military to accept professed homosexuals. in my view she has neither the expeence on which to base that wisdom nor the responsibility to deal with the consequences of her conviction. i thank you again, airman, for this opportunity. >> thank you, colonel. ofcourse, yesterday we -- and i'll be on my timing on, we pu into the record a letter from someone currently serving in afghanistan who strongly supports solicitor general kagan. he was at harvard law when she

was dean, and we will have the next panel, kurt white who is the president of the harvardaw school armed forces after graduating from west point, they were platoon leader and executive offir in iraq where he earned two bronze stars in 2004 and 2006 and we back to duty in 07 with the rank of captain and went on to serve in the national guard, currently finishing two gaduate degree at harvar. who supports -- who supports solicitor general kagan. it's nice to have you back in the committee and i appreciate you by educating people aout why the supreme court matters and how the decisions in your case need to be overturned by legislation. i hope my friends on the other

side wil join us in protecng the workers discrimination act and they would have the bipartisan support and wou need the same out there. after the testimony, miss ledbetter, thanks for helping us overturn an unjust decision. miss ledbetter, yesterday senator klobuchar made a point that people like elena kagan broke the glas ceiling. when you started working how many women managersere there? >> ne to my kwledge. i never met any. >> do you know how many women were on the supreme court when your case went before them? >> one. >> how do you think women or young girls in this country who feel solicitor general kagan is

confirmed? we have for the first time three women on the nine-member supreme cour >> i think it would be an outstanding accomplishme for the ople across the nation. not only the women, but also their families, and one thing i've heard in watching the hearings, all of her -- elena kagan's responses have been that she would adre and follow the law, not make the law. she understands what her responsibility would be as a supreme court justice. >> is that why you suort her? >> yes, sir. yes, sir. i wish the people on the supme court, five of those justices, just one more adhered to the law my case, then my outcome would have been different. >> thank you. >> miss gibbons, you spoke about the life of work on the shore of prin william sound, alaska. you dedicated your life and a

personal effect on people, the suicides, the demoralized people. all those people, i understand, like the folks in the gulf work very hard, played by the rules and didn't expect anybody else to play by the rules, and in your testimony, you touch on the impt of the exxon case and on your community and you are now one of the litigants in it, so you don't hve a financial interest in this. but you see what is done to the people there just as we see ery night on the news what it's doing to the people down on the gulf. do you think that the supreme court ruling in exxon shipping versus baker has affected public confidence in our justice system? if so, how? >> well, as i mentioned briefly,

the impact that it had on people in my community, what they took away from it is a sense that there is no justice and currently, i work a lot with people in the gulf who are trying be very supportive of them, and i think there's the same sphere, and when you look at the mistakes that have been made to human errors and the attention on the profit margin. the missed opportunities over and over again to prevent things like this, d i'm also president of the chamber of commerce. i believe in business, and i believe business can do e right thing,but when the laws aren't enforced and the best tool to have corporations accountable and punitive damages are not used ithe way that thewere intended, th people lose faith, and i would have to saythat the people in my community have lost faith.

>> thank you very much. my time expired. i'll be putting a letter in the record after,ut i yield to seator sessions. thank you, mr. chairman. i thank our military witnesses, with stati the true fact of what happened at harvard was not an itty-bitty matter. it was not a matter that slid into reality and dean kagan was caught somehow in the middle a controversy. she was a leader, and s was a driving force in th effort and to remove the military from full and equal access to that campus. after the solomon amendmen had been passed and is that was required, captain, were you with general petraeus in mosul? >> i was not -- i didn't have the chance to serve under him,

no, sir. >> i was with the 101st there during that time in mosul, and the alabama nional guard attacd to them, too. you talked about comingn the back door and havi captain youngblood, having to dine in the kitchen a not sit out front. do you think that -- you're yale, you're harvard and you're notre dame. do you feel that that power, setting aside the up pact it may have had on recruiting sent a message of some kind to the veterans and to the recruiters who they themselves his come off the batlefield and come on that campus? >> oh, that message very clearly is your service to the country and to protect the constitution is not valued by these institutions. >> itertainly was not a

message of support. i know she met with veterans on veterans' day and she met occas. that's appreciated by veteran. we learned that have vietnamet we did not honor. but a whole other issue to elevate their service, show fellow classmates that, deed, entering the military,oing into the? >> a.g. cos anbeing an army or air force lawyer is a way to contrite to your country. it's one thing to say it, anothr thing to do it and i think sheade at very clr. >> this, being what familiar ith the harvard campus, i understand that the speech she made to a protest, was at the same time a recruiter was in the next building attempting to recruit students. so she made a speech in which she condemned the military policy and spokeut in that fashion. do you think that had been an asset to the recruiter and his

effort in the nextbuilding? >> certainly not going to help, sir. also the fact that was encouraged ta students would sign up for time with recruiters who had no interes i joining he military, to clog the time and clog t rolls so that less actual possible recruits would have acss. that's something ms. kagan also is purported to have encouraged. >> well, this veterans' group, do you have any knowledge of it at harvard? >> i've been a member of some veterans' groups. often time wes sit around and drink beers but don't usually bring recruiters on campus mpt they didn't a salary or office. they were aroup of people that got together on occasion to -- and for -- howdo you feel -- from the testimony here about how the veterans associatin was offered the opportunity to be helpful to the recruiters, how do you judge that as a realistic

explanation for denying him the offial ability to ulize the recruiting services and office? >> i just don'think there's any way you could possibly say that that is equal access. you're thrusting it on student with a full work load like nyone else. they didn't sign up to bring recruiters on, don't have the resources, not able to publicize it. students often didn't even know recruiters were there. it's a issue when the office of servic, anybody in a university knows that all the folks that come in to offer jobs go through career services. you read the bulletin. look on the screen, see hoop here. you're not accessing a pool of students in any equal waywhen you don't have access to that. >> much is made over time about the networking opportuniti. i absolute agree. an ivy league to provide students, and to be shut out

when everyone goes to a career service prevents people from everonsidering those careers. >> colonel, thank you for your service, and do you have any comments on that subject? >> you know, actually, the experience i had at notre dame was in direct contrast to what these gentlemen have said for the very opposite reason. notre dame strictly catholic school, practices the catholic character, just war, etcetera, has a strong rotc center and i saw very well and discussed heatedly with a numbeof faculty about the position of the military on campus and even issues of war. one of the rempss i made in m teimony, senator, actually comefrom the mouth of father ted hessberg. by many standards, not a aming conservative who believed one of the main reasons to have a strong rotc presence at note dame in the graduate and undergraduate school, those who go into the military and

influence the military such as from their upbringing. >> and my brother-in-law is a teacher, is a holy cross priest and a teacher there for some time. we are trying to keep on strict schedule and i'm going to turn in the gavel over to senator cardin, with the next person to beecognized will be senator specter,nd if anybody feels they're being consult off, it is, again, because of the extraordinaryircumstances of starting this hour, just sthat all the others are going to want to testify will have the time to goethe for and against solicitor general kagan. so that's why i'm -- i know you've been waiting tiently, but that's why were cutting the time. thank you. >> mr. chairman, may i yield to senator durbin and take a turn >> sir, go ahead, senator durbin.

>> well, thanks, senator specter, an thanks to the panel for your testimony, all of you. i want to especially thank ms. ledbetter and mr. gross, hearings are so technical, so legal, i'm sure at the end of the day, a lot of people think this will never affect me, but each of you has a story about how it affected you personally and i thk you vermuch for doing that. ms. ledbetter, we met before, and i congratulate you for not giving up after the supreme court. i was there when present obama signed the ledbetter bill and was proud to be a part of that. ving worked with the farm bureau, i'm sorry were you a victim of age discrimination a sorry e supreme court, supposed to be a non-activist court, decided to invent a legal theoryo deny you recovery.

i think that's unfortunate. ms. gions, 1 years ago i was up in prince william sound, right afte the spill and saw it. never forget it, as long as i live and i, too, share your skepticism of the promises made on the corporateide and know we need have a court system and a congress that is sensive to the need to think, as you say, and be thoughtful in wait we approach some of these environmental issues. to the other ree witnesses i apologize for stepping out for a moment, but i have read your testiny, and i thank you for being here and thank you for your service to r country. e all appreciate it very much. i'd like to note by way of a question two things that struck me recently. one is the fact we all know so many of our great veterans of world war ii are passing on. time is tang i toll. i? one, joe flynn, part of the

d-day invasion, battle of the bulge. great oldful oh. so proud of his service in world war ii and i don't question for a minute what tom broke coe said, the greatest generation. they served for the duration when they decided to enlist in our armed forces. but there was also another histori event just last week. the 60th anniversary of the beginning of the koan war, and we gathered in statuary hallin one of the first persons to speak was congressman charlie wrangle of new york. congressman charlie ranl was a combat veteran of the korean wa he enlisted in aarmy that was seg gra daregated and he happen serve in korea in combat beuse of president truman to integrate our armed forces. i raise thaquestion, because i want to ask one of you, any of

you, if you think that we can honor the grtest generation in our military men who gave so much to our country and still look back with in dismay that it was a segregated force and it wasn't until the koan war that ourilitary was truly integrated? and if you think that you can, and i believe you can, can you understand for a moment how some may have feelings about discrimination in our current military? against those of a differe sexual orientation and believe that that dirimination should also be noted and people may want to speak out? i invite your comments. >> senator, i would say that i can understand that crtain members of our society would feel excluded because of a particular policy, and many people have different opinions on that policy. my testimony and my issue is the way in which ms. kagan confronted that policy. she could have done so by talking about the wrongs of

countries like saudi arabia that execute homoxuals. she could have taken issue with it by not bringing senators and congressmen o voted for the w she calls immoral long of the rst order to campus. there were many different ways she could have zeroed in on that partilar policy a instead used the miliry as the foca point to do it, when these recruiters, they're messengers. they're there 20 recruit -- >> don't disagree with the press that if you feel that there is discrimination in our society and even though you respect the institution, the military of world war ii, but know there s discrimination that speaking out is not un-american, or inconsistent with our histy. is it? >> i'm not calling it un-ameran. but i think you also have to look into context of the post-9/11 world, where we are fighting a real enemy. and we need recruits and good ones. >> i understand that and i understand the testimony of solicitor gener kagan, and you've all noted and see it

differently, that during thi piod of time the recruiters were on campus with veterans' organizations and actually increased the number of recruits. some you said, well, had maybe more if they'd have done it in a different fashion, but i think it was clear from letters we received om this committee, she is not opposed to veterans. she is not opposed to the military. it was a matter of conscience for her to speak out, i respect her f that. she might have done it differently. we all might have done things differently, but in e end, there's no question that she has the greatest respect for the military and her country as i have respect foryourselves. thank you. >> thank you, senator durbin. senator hatch. >> mr. chairman, at this -- i appreciate the testimony here oday. >> senator klobuchar. >> thank you very much, all of you. and thank you eecially f your service and everything you've done for our country. i really appreciate it. i was just going to -- we talked

a lot about your case during the questions ofolicitor general kagan, ms. ledbetter, and i wanted to just go through some of that. first of all, could you just go through again how you found out how had you to find out that some of yourcouerparts, your male counterparts were making more money than did you and got raises that you didn't get? >> yes. i onlyearned about the discrepancy in my pay after 19 years, and that was with someone leaving me an anonymous note, because otherwise, i would not have known, because goodyear pointed each prohibited each of us from discussing our pay or we would not work there. our pay was never discussed and we could not find out. that was the only way i could find out. >> you had no way of knowg other workers, men, getting more money thaou and it kept getting worse and worse as the

years go by? >> no, i did not. i have no way to know. >> then you went to court and won an award sayingyou could make up that money that you'd lost and then you go to the u.s. supreme court, and what did they tell you? in temple terms of when y were supposed to have found that out? >> accding to the response justice alito wre, he said i should have complained after the first paycheck,hat i received that was discriminatory, even though i didn't know that, and no way to prove it. >> so i was wondering, and i know justice ginsburg, something i talked to solicitor general kagan about this, was i suppose, you would have had to be rifling through the drawers of looking at pay stubs or asking your fellow employees how much they were making? is that what you were supposed tt do? >> well, i was supposed to do that in order to find out. and had i ne that i would have been fired. >> right. so i think one of the reasons your case, in addition to the obvious wrongs that were righted

by the law that we passed in congress, but i think one of the things that interested me about yr case was it was just an example of you, who never thought you'd end up here in the halls of congress, nor i think did any of the other witnesses here. i can see them shaking their heads at the end and wondering if it that fun, anyway, to be here, but what strikes me mo about your case is that you just happened to be in this situation. you ended up going to the highest court in the land, and i think, to me, you are an example of what i talked about, that these decisions have an impact on regular people. when the court makes these decisions. you touched on the fact of who your tetimony, through your testimony, that sometimes the law isn't always clear, ms. ledbetter, and that the importance of the court using common sense is very important. and do you want to talk a little bit more about why you think

solicitor genal kag, who i know you're here to testify today, why you think she has that common sense. >> because that's what i've heard her say in these hearings so far is that she would aere to the law and not be making the law. it's congress' job to change laws and make new laws, and a supreme court justi should adhere to the law and follow t precedent, and i'veeard her say, she would follow press dent. i heard senator specter yesterday come in about some of the, two of the last three supreme court justices that went on the bench have not ruled according to the way they testified when they were confirmed. >> okay. now, ms. gibbons, i'm always interested in your case not only because of the horrible wrong that happened there, but actually a minnesota law fi represented the fishermen, the plaintiffs in the case. i'm somewhat familiar, actually

read a book on it called "cleaning up" about the case of how long it took and those kinds of thing. what do you think we can learn from what happened? the delay, that 8,000 of the plaintiffs died before getting any of the awards, because of the delay in at case and as you meioned, the verdi was $5 billion slashed down to $500 million. what are the lessons we can learn in terms of the supreme court and also what we should be doing now with the oil spilin the gulf. >> have you got a couple weeks? >> i have exactly 19 seconds. no ihin you can -- go a little into my time,he chairman will allow. >> 15 seconds. >> well, one of theig problems was after 20 years everything was out of context. the strategy that the lawyers had for their clients was out of context. the climate of the countrhad changed. one of the things that i think concernme the most is over that time the s. chamber of

commerce had, has a really serious influence on the composition of t court, and as an environmental activist and as president of our local chamber of commerce, i support business, but i think somewhere along the line we forgot that the backbo of the united states is actuly small business. in terms of what's going on in the gulf i think we need to look at some of the things that were applied in alaska. our oil response system. our regional citizens advisory councils and those things need to be institutionalized nationwide. i also think it's incredibly important that we institutionalize transparency through public participation in incident command sysm, in the development of plans. here we have a plan for response in the gulf that, tre's nothing there. and citizens can be participating.

i think that's the real hope of transparency. >> thank you very mu. thank you. >>hank you very much. senator? >> thank you, mr. chairman. i appreciate all of the witnesses' testimony as to the first three, i take from the invitation to have them testify the hope that their presence arguesor a just heiswould rule for them. more resus oriented ploy, i cannot imagine. it is precisely the concern i have about the president's nomination in nominating elena kagan, as to the last three i thank you for your service and your testimony. >> let me thank all of our witnesses. i partularly want thank our three military witnesses for their service to our country. and we very much appciate you being here. i do want to put in the record a letter that was sent to chairman leahy today from zachary

craiger, a navy person, in the navy, in support of dean kagan who was at harvard during the time in question. without objection th would be made part of the record. i also want, during my time, to underscore the point that i said in my opening statements, that the solicitor general kagan's hearing. and than is, i want americans to get a beer understanding of the impact of the supreme court on their everyday lives. and i think this panel has been particularly helpful in that regards. it affects students, their decisions. it aectses certainly workers. it affects consumers andlearly affects those who are fighting for our environment, and i particularly want to thank lilly led beddor and jack gross and nnifer gibbons for putting a face on the issue. we hear statistics, we hear numbers, but we really are

talking about the effect on real people's lives, and we know the name gross and the name ledbetter because of supreme court decisions, but they're real people, as we see here today, who have real emotions and solicitor general kagan said that she wants everyone american to get a fair shake. something that really impress immediatin her opening comments. so i just want to go back to this one more time and give you, ms. ledbetter, and mr. gross, ms. gibbons, a chance to resnd as to how you felt when you took your case to the court and were able to pro discrimination, able to get an award, knewthat congress had pass add law agast gender discrimination, against age discrimination. you had the law on your side and then your case goes to the supreme court, and in one case, ms. ledbetter, the court rules

against you, and the other, mr. gross, the court changes the case in order to take up basically a different matter, but the results werethe same. you both were denied your individual justice, but just as importantly, the reason you brought the caseis to make it cle that gender discrimination and age discrimination has no place in america. how did you feel the day you learned about the supreme court decision? >> the day i learned, i w very disappointed, because as you said, the law had been on my side. it supported my case. the equal employment offic had supported me all the way to the supreme court, and then those five justices decided i should have complained back in the early days when my pay was first set, even though i didn't kw it, and even though i had no way to prove it, and even tugh we were not allowed to discuss or ask abt our pay. it was so hard to understand how

they could do that, and the president had alway beenn otherases that it would ha gone in my favor. it was really devastating, because this is a real people, real lives, and it's not easy to swallow this disappointment when they change the law. i fet, in the supreme court, they didn't say i had not been discriminated against. they just said i waited too long. >> mr. gross? >> a couple of things. during the, justice souter made the comment juries are smarter than justices and that kind of rang true. i really felt like the first obligates's our court system trying to sanctify the jur high heard all othe evidence and so all of the testimony, our citizens heard the law.

were able to interpret it. pretty bright iowans. i think discrimination is a little bit like pornography. you may not be able to fine it clearly but you know it when you see it and i believe the jury did. secondlyhen we got to the hearing and we had presented everything that had been briefed, i had personally spent $11,000 just of printing costs for the briefs, once we got there, and we got the argument, solicitor general took afl half of our time and made an agument on our behalf and l of a sudden we were just blindsided. they decided, let's just take off in a new direction. instead of addressing the issue they agreed to take, they said let's go back and look at the entire context of the ea, and the language of it, and essentially they just redefined the law. >> thank you. you've alrea answed that from your community, i think. senator specter. >> thank you, mr. chairman.

captain, i was in rotc myself, and somwould say the university of pennsylvania, you pressed concern about difficulties in recruiting on so-called league campus, and i think what you see very poor, distant, 22ened, first story i went to summer camp one of,000 beds on june 25ing, 1950, the day of the kean war. we were catholic. we [ inaudible ] supposed to -- wlb we finished or training, they sen us back to sool because they wanted to win the war, but i served stateside during the korean war.

and i think the military has to have access. when you deal with the issue of sexual orientatn yu're on a very sensitive subject, and thinking has evolv upon the matter with the supreme court changing the law, and i have a couple of issues that i'd like you to respond to. one issue is whether sexual orientation has any impact on the ability to serve and the seconwoulde whether even if you disagree with ms. kagan i disagree with quite a few thing, of course, in the last couple days, and i'm thinking about her nomination very carefully. would you say that this one

issue in the context of her overall career would be a disqualifier? take up number one first about sexual reference having any impact on a person's ability to serve, man or woman. >> i would say fit f, senator, the issue, and this is something i've argued since a student in college, an issue back in the '90s. so long as someone's willing to put their service in the military first, just like everybody in the miller that to do mission comes first. i personally don't have a problem with that, but, again, mission hasto co first. snag arises that disruptses mission, doesn't matter what it is, it could disrupt the mission. congress sets that policy. it's your decision as aember of congress so to do. someone in the military would just salute and drive ou smartly. >> well, there are a number of, man things could affect mission, but you think sexual

orientation does? >> again, like i say, if someone's willing to put their service firstand worry about the mission first, to me, it's not something that's an issue. >> how about the question of -- of one issue disqualifying a nominee from the court? >> well, i think it's not an issue strictly speaking of don't ask, don't tell here. it's more an issue that through her own decision, dean kagan at the haard law school deded to strictly ignore the law. there was no injunction from a court that had jurisdiction over harvard law school, no one issued a statement or enjoined the o.d. from enforcing the law as her letter said, which read into the record, she strictly acted hing that she would be able to not have the law enforced. knowing full well that the law

was in full force and effect. so to that i would say, somebody that sws disregard of that nature to a federal law, a law set by this body, is not acting in conjunction or in honoring the rule of law,hich she has been on record saying e would honor the rule of law, there's a irect contradiction there, amend secondly, especiallin a time of war whenthere are people out fighting and dying, we have somebody that a flouting the foundation of the rule of law, which is to say our constitution. so that, i do have a serious issue with it. >> thank you for your service, captain youngblood, and captain hegseth and colonel. one question for you, mr. gross. your age discrimination with victory before a jury was reversed by the supreme cour which is, as you characterized

did not follow -- i think that precedent is veryimportant. we've had a lot of discussion in ths room about decisives as far as, latin phrase, foll the law, and ve been coerned about nominees talk about stare decisis an th not follow it. chief justice said he would follow it and issued a long letter dpis pung. one of e concerns i have what we do about the nominee whose say one thing here across the street and decide at some othe way, and i've been pushing television for a long time as the one thing, if people understand what the court does, and they decide all the queions, there might bb some pressure on accountability.

i'd like your opinion as a fella who's been to the supreme court, probably even watch television, whether you they levision would have a good impact generally or if we understood what the court was doing, would have someone accountability? >> respond quickly. you can also supplement this by a written response. >> well, there's actually several parts to that question. in general i agree with a lot of what you're sayin i watched a little bit of the hearings. i think there's a consensus among everybody, both parties, that we don't wan activist judges. we want the to follow the law. i've heard it te after time. there does seem to be some artisanship that ernts into that. i don't know if you can find perfectly unparsan candidate for this, but i think you have a very tough job on your committee to vent people. that's what we hire you to do, and we're assuming you're going to do the bestob that you can.

be as diplomatic asan yo as far as televising thingsnd keeping them open, i think that would be good, as transparent, b but -- >> concise answer. thank you. i tnk our witnesses for the testimony anthat will conclude the first panel. we will now call up the second pel. senator leahy announcing bawd we unable to do more than one round that we may, there will be some questions propounded in writing to our different panelists. with your cooperation, we maybe coming back to you and asking for further information. i believe the record's open until noon on monday for questions to the witnesses. thank you all very much for being here. >> chaian, i wish to thank all of you. sorry i didn't get to talk to the first three witnesses. i got carried away with a military issue i care about, and ms. ledbetter, good to see you. went part that goodyear plant a lot of time, according toy

wife. and congratulations on moving the congress to ater the la i think in a way that it will be not aloud thatind of thing to happen. >> thank you, senator. >> again, we thank all the witnesses for making the effort to be here. it's certainly important for this process. ts is the supreme court of the united states. it's important we get as much information as possible. >> thank you. >> you spoeb about your view of relevance prior precedence. can you elaborate on that? and whether there's a down side to having the entire court come from an 'pell lat court

background. >> pu. thank you. i stated that i thought it was irrelevant that elena kagan had no prior judicial experience. and i stated that many of our most distinguished justices did not have prior experience, including ief justice john marshall and william reng kwis, earl warren and i could go on and on. i think there were 65. i don't have a particular view about whether it's a good or bad thing to have had prior appellate experience. >> thank you. captain white, let me begin by recognizing your service to the country. you serve as an example to us all, and we thank you for it. in your testimony, you spoke about how solicitor general kagan was welcoming and accommodating to military veterans. could you tell us morebout that? >> during my time there, it really started on my first day with me. i think for most of the veterans

that i have spoken to, we all went to -- we all went into harvard witsome bit of trepidation going to an ivy league school, which traditionally i think dot have the reputation of being as supportive of the military as maybe some other institutions in the country. so it was really wonderful on that first day to be recognized for our service in frontof our classmates and for that to be pointed out and for then dean kagan to show her gratitude toward us. that was really, i guess, what started it. and then, i think, after this being there while articles were published in the school newspaper, as well as on the school website, highlighting veterans and their stories. it was something that just really went toward creating an environment that showed that,

even whatever the policies were regarding military recruiting and office of career services, it was an administration headed by dean kagan that was very suortive of the military in general and very much appreciated the service of the veterans that were there at the law school. >> thank you. professor clark, you preceded dean kagan as dean of the school. can you give us a brief description of the chronology of the law school's interaction with military recruiters in connection with the solomon amendment? >> yes. >> well, as you know, the law school adopted its nondiscrimination policy rule that said that each person wanted to recruit use the ocs, had to sign the statement, way back in 1979, long before i became dean.

after the don't ask don't tell policy emerged, the practice developed the military recruiters couldn't sign it. but we quickly enlisted the veterans students associationas %%vehicle for getting military recruiters on campus. and the idea was really simple, that it is possible to exprs disagreement with a policy while still showing respect and appreciation for the military. the solomon amenent came out in 1996. in 1998, we got an inquiry from, i think it was the air force, asking us to explain w we thought we complied with the regulations. we sent him a letter, and they said this seems tok. and it was like that until about december, 2001.

not surprisingly, a few months after 9/11, when perhaps with new members or because perhaps of the new environment, we got another letter saying we no longer see how this constitutes the requisite access and we're going to recommend tohe department of defense that the fund being cut. so i consulted at great length to the president of harvard, larry summer, and the general council and student groups of all sorts and faculty members on the placement committee and we tried to respond to that letter, that we're not satisfied and cut it short, i guess, in july of 2002, we said okay, we'll let them use the ocs, and then issued a statement to the student body in august explaining the history own what was going on, and said you're still free to express your views on the don't ask don't tell policy, but this is the way it's going to be. and so that is the practice that

she took over. and in effect, what she did after the third circuit opinion was to simply revert back to the old pattern which had existed for, i don't know, a very long time and seemed to work while the case was on appeal to the supreme court. but changed when she got to -- the message from the department of defense that despite all this, she was not going to -- they were not going to try to cut off harvard's funding. and as my letter to the wall street journal, my op-ed pointed out, that was really a matter of law school expressing a policy about discrimination. we're a law school after al and we did not feel it was our -- i did not feel it was our right to put the whole university at risk of funding, you know,maintaining the

policy. it didn't matter much to the law school but it mattered a lot to the medical school and the school of health and other clenls in the solomon amendment. >> thank you. >> thank you, mr. chairman. good place for a professor of law to be who's not a lawyer even. your remarkable ascendency here. >> you consider yourself a conservative that -- >> yes, i do. >> i felt your book of terrorism was a sea in -- an island of sanity in a sea of hysteria around. and i have quoted from a number of times. in a debate over how to handle these issues and i respect you for it. let me just ask, i believe

manning and mu were hired with you by dean kagan. >> we were al hired within a few years, yes, sir. >> are you aware of any other recognized conservatives who were hired under her tenure? >> well, we don't really think about as much as people do outside the law school about conservatives and nonconservatis. i don't know the political and legal views of a lot of our colleag colleagues. i think it's -- i don't think only three nsertives were hired -- >> i'm not implying that. 3 out of 4 3. >> i don't think that's accurate. i would say the reason that we're picked out is because we write about legal issues and public law and we're taken to have a conservative stance on that, but i don't believe the numerator is accurate. and i would also say there were a whole range o hires right, left and nter of all stripes.

>> not a many are known out of the 100-some-odd faculty that you're conservative. >> i don't agree with that. >> what percentage? over 10? >> yes, sir, i would. >> over 20? >> i don't know. >> i doubt it. i doubt over 10. mr. white, the only thing i would sa is i appreciate your testimony. and i would just note that dean kagan started having dinners with members of the military, but before that, she was not doing that and that's when the controversy occurred. i think other witnesses say the military wasn't the ones who should have been blamed. those in congress are reonsible for that law.

>> mr. whalen, you talked about this question of activism and i really do think it's important. i think i've used senator hatcher's formulation of it. i'm not sure he agrees i got it right, but i would say an a activist who deserves criticism is one who ceases to be faithful to the legitimate interpretation of the law and the constitution and allows personal political and religious social agenda to impact how they decide a case, a nonlegal basis form of adjudication. with regard to ledbetter, in your opinion, were previous

cases, was that decision consistent with previous interpretations of the statute? >> the decision was consistent with four supreme court precedence over three decades. the opinn spelled that out in detail. i invite you to act the man who wrote the brief argument of the case for the government. mr. garr i'm sure will confirm that. >> is that correct? that's right, mr. garr. >> i was one of the department of justices. i could not argue the case. doi thk that mr. whale season right, that the government's position in that case and ultimately the supreme court's decision in that case was in line with a number of prior supreme court decisions. >> and would therefore be -- i'll ask you frankly, unfair tor to accuse the course of an activist --

>> i agree with you, your honor. senator. force of habit. >> he likes the former better. >> dean kagan never made that mistake, having never been before a judge but a few times in arguing a case. >> mr. alt on citizens united, people cricized the court for orring a rehearing, as if this was some error on the court. it seems to me that showed a greatespect and understanding that a case might need to be reversed and it needed great care before such an action would be taken. the austin case, i guess, in particular. would you consider that the court ordering a rehearing was a wise thing to do before making a significant decision in that circumstance? >> i certainly would, senator. i think it gave the parties ample opportunity to both brief and argue the question.

regrettably the government's position, given the failings of the statute didn't get any better. it went gr from depending it on the basis of it could be used to ban books to, well, the statute could be used to ban pamphlets. i think the court found that equally disturbing. in the second argument, one of the other criticisms frequently made was they didn't try to avoid the question. if you look, the court had been avoiding the constitutional question on this for a long time. and it had gotten to the point where they were bending the law to the point where it was breaking. they needed to answer this question, and io think that rehearing gave the parties ample opportunity to brief and argue before the action was taken to overturn austin.

>> i'll just add to that, citizens united is talked about as a conservative decision. i understand that part, as the aclu was very prominent in fooim fi filing an amicus brief on the so-called conservative decision. the court was very clear. you had politicians like harry truman whene signed a particular statute acknowledged that he thought the provision on cporate restrictions was unconstitutional. justice douglas supported the position that the majority embraced. you could like citizens united, you could not like it. it's a free country. you could say what you want. but to say that's a conservative opinion is surprising. when there were so many liberal supporters embracing it -- embracing the position that the supreme court ultimately adopted. >> thank you.

>> thank you, senator hatch. >> well, thank you. mr. chairman, i appreciate it. i appreciate each one of you folks who are here today. professor goldsmith, i'm happy to have you there. i think you're a great addion to harvard. captain, you have to respect what you say. dean clark, ei've watched yo for years and i've enjoyed your testimony. it's very frank. you mentioned some concerns you ha, but on the other hand, it's important testimony. i've had a lot to do with a number of you guys here, so i feel very deeply towards all of you. i've read professor rotunda, constitutional law, his whole series, and just want to pay tribute to you as well. you read it, too, huh?

now, if i understand you mr. alt and you, mr. whalen, you're saying in the lbetter case, that the court did nothing wrong. it just sustained a congressional enactment, right? >> well, yes, senator. it's even beyond that. >> sustained a 180-day statute of limitation? >> a charging period for an eeoc filing. but it's beyond that. the criticisms levelled against it rest constantly on a misrepresentation on what the court held. the court mad clear that it's not -- >> that's my point. i agree with you on that. the fact of the matter is congress then came back and changed it so they could correct the so-called ill. but in all honesty, if it's true that she had five years since she left the position, she could have asserted herself in 180

days. now, that's cloudy in a lot of our minds. but the fact of the matter is it's not activism to sustain the law that congress passed. and if it happens to be wrong, congress can change that law, which it did. in this particular case. if ieve got you right, that's what i understand you were saying. >> that's correct, senator. the examples i used to have liberal judicial activism were rulings on constitutional grounds that invalidated democratic enactments in hugely important areas in a way that congress and state legislators can not possibly address. that's where we see the core of judicial activism when courts wrongly rule on constitutional issues in a way that invalidates activism. >> i don't disagree with you. in the citizens united case, if either one of you could answer this, or anybody else for that matter in the citizens united case, it seemed to me that case overruled the austin decision.

but how many decisions were different from austin before that. >> this i a se, if you take a look -- >> you don't have to convince me on austin. i think they should have overruled austin. but my point is a bigger point than that. and that is they reay sustained years and years in case after case that had pre-existed, am i right or wrong on that? >> absolutely. dating bk the u.s. versus the congress of industrial organizations case in 1948 in which the court suggested that limitations on -- which would restrict writing bay union -- writings by a union would -- >> basically what they did was reaffi reaffirm -- >> certainly with regard to the core -- >> my point is that it doesn't sound like activism to me. >> no. buckley said that free speech is

the rule and the exception is limitations on corruption and the appearancef corruption. austin came up with the full expansion on that. >> when these hearings started, our colleagues on the other side, i think were taking on the roberts court, as though it was an activist court. i personally think that's wrong. and i thinkou've made a fairly decencase here today that it is wrong. >> senator, if i may add one point about citizens united that developed more in my written testimony. solicitor general kagan declined to defend the actual rationale of austin which points out what underliar she was. she was criticized by folks on the left for doing so. chief justice roberts pointed out her failure to do so. i'm not faulting her forthat. 'm pointing out that it illustrates that austin was not a precedent worthy of respect. >> ll, the court explained that it overruled austin because austin was not consistent with the first amendment.

i always argue on part of the first amendment if i can. in other words, in overruling austin, the court was referring the constitution to one of its own precedence. >> exactly. and as professor rotunda pointed out, it's odd to describe a robust first amendmentuling that benefits unions equally with corporations and is sought as a conservative result. >> my time is up, but isn't adhering more closely to the law inhis case to the constitution an example of judicial restraint rather than judicial activism? >> the court's obligation is to strike down democratic enactments that violate the constitution. en it does that, it's not engaging in activism. >> so that's judicial restraint? >> entirely consistent with judicial restraint, yes, senator. >> thank you. >> senator, kyl. >> thank you, mr. chairman. and thank you all. captain, first of all, thank you very much for your service. all of you have provided us

important advice about someone who you know well, or whose views you have closely studied and your testimony is very helpful to us. i thank you for . i have not read the written version of all of your testimony, but i have read your, mr. whalen and i found it up to your useful incisive and impactful standard. none of my democratic colleagues are here to be instructed in the error of their ways. and upholding speech in the first amendment is not considered a liberal decision in either the claz call or contemporary sense in that. i would enjoy being in a legal seminar with every single one of you. thank you very much for your testimony. >> another vast majority of courses are courses that you could not identify who -- what

someone's political persuasion, bankruptcy court, isn't that true? >> there are lots of divisions with faculty and what you would consider right and left. but what they mean is different from what you mean here in the confirmation hearings. it's usually whether you think historians are wortheading or whether you think economic analysis with a lot of quantitative data means anything. 's that sort of thing rather than what you've been talking about far few days. >> thank you. mr. garr, you have a unique perspective, one at you share with general kagan. please tell us about the relationship between the supreme court and the solicitor general nd how you believe svice as solicitor general provides

valuable experience in serving on the court pop i think it's valuable in a number of different respects. the solicitor general is an officer of the court. she's the most frequent litigant before the court. she's grappling in many respects with the same issues that the supreme court is grappling with. and it is simply impossible to serve as solicitor general, not develop a profound respect for the supreme court and appreciation for its role in american government. in all those respects, i think it will be extremely helpful. i think general kagan had a deep knowledge of the supreme court before she held that job. bu experience a solicitor gener and practicing before the court gives you unique perspective on the workload of the court, the rhythms of the court, and the role of the court.

>> thank you. mr. garr, you uld know that solicitor general kagan made her first appellate argument ever just nine months ago, and as i think it actively served as a solicitor general for only 14 months and has had no other sustained legal experience other than two years in a law firm right out of college. i think justic rehnquist had a number of years of full-time practice serving in the office of legal counnel, which is an exceedingly critical part of the department of justice. but regardless, i just think that her experience is by any standard -- it would be difficult for anyone who imagine saying it's not thin. and i will back off professor kauffman. i'm sure i overstated a bit the,

maybe to bias some professor goldsmith, but the imbalance in harvard. but it is a real legitimate criticism and concern of a lot of us that law schools do have an extraordinarily -- extraordinary number of liberal, progressives faculty members as compared to conservatives. some felt they need to do better. maybe in the last few years have done a little better. but the balance is clear and they have to understand that when they go through the courses or hard headed as i was when i went through. this was really a good panel. professor, i thk that this

interlanl law issue is important because americans believe they should not be controlled by anyone they don't elect to represent them. how can we have our law controlled, defined and modified or influenced by some part nmt belgium? you're right. we fought a revolution over that. i wonl wish you had clearer answers by ms. kagan on that point. >> if you believe like justice kennedy has said or justice k s ginsburg or stevens, why not

defend that? by the way, i was taken aback by justice stevens' opinion monday in the mcdonald case in which he talked about wisdom from a billion people around the world. >> i think the idea is in the air and i think it would be very important to crush it. >> well, justice skal leah did his be -- scalia did his best. thank you, mr. chairman. >> senator hatch? >> it's good to have you all here. testimony has been good across the board. >> doi, too. i think the testimony has been excellent. i really want to thank you all for coming here and helping with this. as a senator, i have to say that this is the -- after sending troops in harm's way, which is always the toughest decision, how we vote on supreme court nominees is clearly the most important thing we have to do. it's a lifetime appointment.

and a supreme court justice will be making decisions that are >> good evening, everyone. the hearing is about to come

back into order. because of the number of witnesses on this panel, would like to reiterate previous requests and ask all witnesses to limit your oral statement to five minutes or under. if i interrupt, we can puthe rest in the record. whatever we have, we will put in the record. weould like to keep it to five minutes. your full statement, any parts you hen't finished will be put in the record. senator, like wise will have five minutes to as questions in the panel along with ranking member sessions, i'm welcome -- happy to welcome aba witnesses dr. charmaine yost, david kopple and william olson. now i would ask you all to stand and be sworn so we may begin. please raise your right hand. do you affirm the testimony you're about to give with the committee will be e truth, the

whole truth and nothing but the truth so help yogod? >> i do. >> thank you. >> tms. askew and chaota will address ms. kagan's ability to serve on the supreme court. >> thank you. mr. chair, ranking member sessions, we're honored to appear here today to explain the aba standing committee on the federal judiciary's evaluation of the professional qualifications of solicitor general elena kagan. the standing committee gave general kagan its highest rating and uanimously found that she is well qualied. for over 60 year, the standing committee has conducted a thorough, nonpartisan,

nonideological peer review of nominees to the federal court. we assess the nominee's integrity,rofessional competence and judicial temperament. the standing committee does not propose, endorse or recommend nominees. we only evaluate the professal qualifications of a nominee and then rate the nominee either well qualified, qualified or not qualified. of course, a nominee to the supreme court of the united states must possess exceptional professional qualifications. as such, our investigations of a supreme court nominee is more extensive than nominees to the lower federal courtsn two principle ways. first, all circuit members conduct investigations into the nominee's professional qualifications in everyederal circuit in the united ates. not just the circuit in which the nominee resides.

second, while the standing committee independently reviews the writing of the nominee, we also commission three reading groups of distinguished scholars and practitioners. we were pleased to be assisted is year by a prakner's reading group and academic reading groups at georgetown university law center and washington niversity in st. louis school of law. these profesrs are all recognized experts in their substantive areas and our practitioner's group contains top trial and appeate lawyers. and conducting general kagan's evaluation, we contacted b letter some 2400 persons, including every united states federal judge, state judges, lawyers, law professors and deans and community and bar representatives. we conducted in depth interviews with some of the preimminent and most experienced lawyers and judges in the country. we interviewed several justices on the supreme court of the united states, federal and state court judges, lawyers within the

solicitor general's fice, lawyers who had worked with or againsteneral kagan as she has headed the solicitor general's office. and we spoke withformer solicitor generals from both political parties. we followed her career at the university of chicago law school and harvardaw school and interviewed law professors and deans there and elsewhere. and aided by our reading group the committee analyzed her academic priet writhings, transcripts off her oral arguments, speeches and other materials. we personally interviewed general kagan last month. the nearly unanimous consensus of all we interviewed demonstrated that general kagan's professional qualifications are exptionally outstanding in every respect. concluded that general kagan's integrity professional

competence and judicial temperament meet the high stands for the supreme court of the united states. she's well qualified. our rating of well qualified reflects the clear consensus of her peers who have knowledge of her professional qualifications, and we reached out to a broad range of the the legal profession. by any measure, she's ably served our nation as solicitor general, the hard var law school and she's a tenured professor at two of our law school where is she taught in four different subject matter areas. her skills as a lawyer are described as brilliant, remarkable, and at the highest level. she's exceptionally competent. she possesses a keen intellect,

strong listening skills, is willing to look at different points of view and find common ground in the most difficult of spirngs we ask that the aba's statement be made part of the record, the written statement that was submitted and by for for the opportunity to present these remarks on behalf of the standing committee. >> our next witness is the founding fellow of the jamestown project, a think tank that focuses on issues of democracy. professor solomon. >> thank you very much, mr. chairman. mr. ranking member. thank you for having me here. let me begin with what i take to be the obvious. anyone who has even had a passi

elena kagan recognizes the fact that she has a first-class mind. she's an outstanding legal scholar and a terrific teacher. her academic record is excellent. hearings on supreme court nominations represent an important, indeed else is, expression of our democracy. this committee attempts to carefully balance important norms of judicial autonomy with accountability. understandably, the degree to which a particular nominee's judicial philosophy should be taken into account in making your decision is hotly contested. but whether framed in the vocabulary of judicial philosophy or the vocabulary of professional competence, the primary question that animates this hearing and has done so for a long time is what type of justice will elena kagan by if this senate confirms her? to the extent that we can know what type of supreme court

justice she might be, i respectfully suggest that we have to look at the whole person, her entire record as an academic, as an administrator and as a policy advisor. equally important, a fair evaluation of general kagan's character will illuminate the attributes she'll bring to the beach. i'd like to offer some observations about the person i know. my former colleague, my former dean and the person who i'm proud to call my friend. now, given that much of my academic work focuses on issues of access to justice, i want to talk to you a minute about elena's record with respect to developing clinical programs while serving as dean of the harvard law school. clinical programs provide expert legal services to people, communities, businesses, and even governments that otherwise could not afford such services. core principles of our justice

system, equal protection under the law, equal access to the law and the fair distribution of burdens and benefits across the citizenry were advanced by dean kagan's support and interest in clinical programs. concrete people and institutions were provided with legal services and her efforts as dean demonstrated a firm commitment to these values. significantly, the student body responded to her leadership. the number of students participating in clinical programs grew by an astounding 240%. likewise, the number of hours students dedicated to pro bono work rose by 158%. i know from personal experience the kind of impact that pro bono work can have on one's professional career as my exposure to pro bono work while a student at harvard law school shaped my choice to serve the underserved and indigent with the best legal training that the country had to offer.

expertise that my former clients when i was a public defender right here in d.c. would never have been able to afford. clinical work done at harvard and supported by then dean kagan is not merely another line added to a student's resume. rather, clinical work is the place where some of our nation's brightest legal minds decide to use those minds in public -- in the public service of our democracy. i also want to say a brief record about elena's intellect and her intellectual method. i found her to be an active consumer of knowledge. she has a swift and eager mind and understands complex issues before comment or action. while she had many answers, not a trait uncommon to harvard law professors, she recognized that she did not ave all the answers, which may be a trait less common among some of my colleagues. but she was always willing to engage. her thought was always in progress. and she was always willing to

revise an opinion when facts and reason conspired to produce a different result. finally, i shall end by recounting one of general kagan's first acts as dean. as the incoming dean, she could have decided to accept and hold the royal professorship of law, the law school's first endowed chair. she declined. the royal professorship is named after sir isaac royal jr., whose family earned its immense portion from the transatlantic trade. elena kagan decided to become the first person to hold a chair named after one of the prominent african-american attorneys to graduate from the harvard law school and the mentor of the late justice thurgood marshall. in the end, i submit that any fair read of general kagan's character, career and scholarship will lead to the conclusion that she's intellectually gifted, fair-minded, hard-working and an independent thinker.

thank you for the time. >> thank you, fprofessor sullivan. marcia greenberger is the founder and co-president of the national woman's law center. she's an expert on sex discrimination and has participated in the development of key litigation. she received her ba and jd from the university of pennsylvania. >> thank you very much. thank you, senator. thank you, senator sessions and senator hatch. i'm marcia greenberger. since 1972, we've been involved in virtually every major effort to secure and defend women's legal rights in this country. i thank you for the invitation to testify and i do so in strong support of solicitor general elena kagen to be an associate justice of the united states supreme court. elena kagan shines as an example of the progress made in this country.

hers is a remarkable legal career for anyone, but all the more so because she had to break down barriers along the way. none of the positions she has held came to women with ease. and she excelled at each. when she clerked for justice marshall, a giant of a lawyer and a justice, she was just one of 7 out of 30 clerks, seven women out of 30 clerks who clerked for the supreme court that term. the year before she became a tenured law professor at the university of chicago law school, only four women were tenured or even on tenure track at that time. and, of course, she became the first woman to be dean of harvard law school in its almost 200-year history and in 2009 when came the first woman solicitor general. kudos have accompanied her performance in each of these demanding roles.

she's clearly a person of extraordinary intellect and capacity. everyone concedes that. each of the institutions she served benefited enormously from her great talents. the supreme court and the country will benefit with her on it. not only because of her brilliance but because of the quality of justice that will be improved for both men and women when the bench is more representati representative. when for the first time three women sit on the court, the court's deliberations will be deeply enriched by their experiences and perspectives. my written testimony describes in more detail why even one more woman on the court can make such a difference. moreover, a review of elena kagan's record has led the center to confirm that she would

be open-minded and dedicated to the application of the law's purpose and intent. she would be scrupulously fair and committed to dispensing equal justice. all women rely upon the constitution and the law to ensure that fairness and equal opportunity are a reality in our daily lives. women have a particularly great stake in judges' commitment to equal justice and the protection of their legal rights. women's enormous progress toward equal opportunity has rested upon the constitutional right under the equal protection clause to be free from government-imposed discrimination and the right to privacy under the due process clause as well as the statutory protections that women fought so hard to secure in such fundamental areas as education, employment, health and safety

and economic welfare. elena kagan's record demonstrates that she will bring to the court that commitment to the rule of law and to equal justice for ordinary americans including the women of this country who often need its protection as we heard in earlier panels in ways that they never expected. one noteworthy example, which i discuss in my written testimony in more detail, is a case that dealt with the ability of individuals to go to court, to bring criminal contempt proceedings for violations of civil protections ordards and those are orders of particular importance to victims of domestic violence. she argued that case herself. she did so having clearly put enormous time and effort into it. it's been described in earlier panels that the cases that solicitor general argues himself or herself are noteworthy and clearly she saw this one as important.

to us, this evidences what we believe is a hallmark for solicitor general kagan. that she understands and has concern for the way the legal system affects people who need its protections most. in this case victims of domestic violence who still too often struggle to receive justice in our justice system. you know, justice o'connor recently noted that canada has four women on its high court including a female chief justice. she said, now, what's the matter with us? you know, we can do better. with the confirmation of solicitor general kagan to the supreme court, this country is rightfully continuing on its path to doing better. ours is a history of the first,

path-breaker, then the second and the third follows until we reach a point still in the future but i am sure we will reach it where we all stop noticing because it is taken as a given that there will be representation of all of us in our richness and diversity in this country. thank you. >> thank you, miss greenberger. >> may i just say one quit thing? i understand my time has expired, but there were a number of comments about the ledbetter case that i see very differently. i hope in the questioning i'll have an opportunity to discuss it. >> thank you. the honorable justice nan duffly is a justice on the massachusetts court of appeals and a board member of the national association of women judges. previously she served on the ppobate and family court. she earned her ba from the university of connecticut and her jd from harvard law school. justice duffly?

>> thank you for this opportunity to speak. i am honored to be here today as past president of the national association of women judges, as its current cochair of the selection committee and on behalf of nawj's current president. thh national association of women judges is the voice of our nation's female jurists. it has supported the advancement of women in the judiciary since our founding in 1979 when we first sought the appointment of the first woman to the supreme court. in september 1981, joan dempsey cline testified before this committee on behalf of sandra day o'connor, also a founding member. the first female attorney in what would be the united states arrived in maryland in 1683. but women were not admitted to

state bars in this country until 1869 and there were no women judges until 1870 when the first woman was appointed a justice of the peace in wyoming. a century would pass before every state had a woman on the bench. the advancement of women in the legal profession has not been rapid, nor inevitable, but we are now past celebrating firsts. we look forward to celebrating full diversity on our nation's courts. we well recognize the essential qualifycations that a justice of our highest court must have. superior intellectual capacity, an intimate knowledge and deep understanding of constitutional law, and the driving principles of legal jures prudence in this country. general kagan has these quaelts in abundance. not all judges appointed to our courts have or need prior judicial experience. elena kagan's rich and varied

legal career as a private attorney, a white house lawyer, professor, a dean and a government's attorney in matters before the supreme court will provide her with a unique constellation of experiences that will bring fresh ideas to the court. the depth and breadth of general kagan's experience coupled with her aptitude and preparedness will serve her well on the high court should she be appointed. a brilliant and highly regarded lawyer, law professor whose communication skills are renowned, as you've already experienced. her views will be respected by her colleagues. my interactions with general kagan occurred largely during the years she served as the dean of harvard law school from 2003 to 2009. which coincided with my leadership positions in the nawj. among other things we worked together on an initiative that sought to provide information to law students about women and my nort advancement in our country's law firms. at her request i worked on

educational programming for the women's leadership summit that she convened at harvard in 2008 and as an active alumna, i've had a number of opportunities to interact with her and hear her speak. i learned that she comes prepared as a quick and nimble intellect, humor and a respect for her audience. i believe that the presence of women on a court has an impact on overall decision-making that goes beyond the opinions of the female or minority judges themselves. when judicial colleagues respect each other, they're open to an interchange of new ideas that those from diverse backgrounds can bring. women judges bring unique experiences that inform their own decision decisions, but the interchange has profoundly affected the decisions of both the female and the male jurists. elena kagan would be one of three women on the supreme court is also significant. would also be significant. in order to benefit from the diversity of background and

experience that women bring to the bench, the presence of women cannot be occasional or token. our courts and our nation's highest court must reflect the diversity of our people. for well over two decades, women and men have been graduating from our law schools in equal numbers which means the men and women are equally represented in the current pool of attorneys eligible for judicial appointment. with the appointment of elena kagan, the supreme court would come a step closer to reflecting the broad diversity of those who call america home. the national association of women judges supports with enthusiasm and without qualification the nomination of elena kagan to the supreme court of the united states. thank you. >> thank you, justice duffy. now sharmane yost, president and ceo of americans united for life. dr. yost began her career in the

white house during the reagan administration. she's also worked at the project director of the family gender and tenure project at the university of virginia and as vice president at the family research council. she received her ba from wheaten college and her ma from the university of west virginia. you may provide. >> thank you very much for the opportunity to testify today on behalf of americans united for life, the nation's oldest pro-life public interest law and policy organization. our vision at aul is a nation where everyone is welcomed in life and protected in law. we've been committed to defending human life through vigorous judicial, legislative and educational efforts since 1971 and have been involved in every abortion-related case before the supreme court including roe v wade. in fact, 30 years ago this week, aul successfully defended the constitutionality of the hyde

amendment before the supreme court, a landmark case in defense of unborn human life. i'm here tonight because of our strong opposition to the nomination of solicitor general elena kagan to the supreme court. based on our research, we believe that miss kagan will be an agenda-driven justice on the court and she will oppose even the most widely accepted protections for unborn human life. these hearings have strengthened our opposition to miss kagan's appointment. she was willing to manipulate the facts to pursue her own personal political agenda while serving as an advisor to president clinton. she demonstrated a pattern of behavior of letter her passion for a particular policy, partial birth abortion, overwhelm her judgment. tonight i'd like to make three points. first, i urge this committee to officially investigate the discrepancies that have arisen this week between miss kagan's testimony and the written record about her actions related to

potentially lobbying the american medical sgdz and the american college of obs obstutritions during her tenure in the clinton white house. the questions surrounding this period are troubling and call into question miss kagan's ability to adopt an impartial temperament. she has hostility toregulations of abortion. we believe that miss kagan would undermine any efforts by our elected representatives to pass our defend even the most widely accepted, common-sense regulations of abortion like bans on partial birth abortion, parental notification and informed consent. her testimony this week, particularly her response that any regulation of abortion requires the doe health exception has added to this concern. third, we believe that a nominee's judicial philosophy goes to the heart of his or her qualifications to serve on the

supreme court. and we believe that miss kagan's agenda-driven philosophy makes her unqualified to serve on the court. we're asking this committee to investigate miss kagan's record related to her interaction with both the ama during her tenure as a policy advisor to president clinton. i'd like to focus attention tonight on her apparent efforts to distort the record on the medle is science related to partial birth aborshz. in a december 14th, 1996, memo -- partial birth abortion is never medically necessary. the release of such a statement she argued would be a disaster. in response, white house documents show that miskagan drafted an amendment to the statement altering the language which stated that partial birth abortion may be the best or most appropriate in a particular circumstance to save the life or preserve the health of a woman.

the change was adopted into the final statement. miss kagan claimed before this committee that she was simply a scribe for changes, but her response raises more questions than it answers. and this was not an isolated case. we have further evidence that she pursued the same strategy with the ama. similar to the original position, the ama issued a policy stating that no situations had been identified where partial birth abortion was the only appropriate method of abortion and that ethical concerns surround it. in a white house e-mail dated june 1, 1997, miss kagan wrote that she just came from a meeting which focused on, quote, whether the ama policy can be reversed at its convention on june 23rd. she then concluded, we agreed to do a bit of thinking about whether we could contribute to that effort. miss kagan was so opposed to the passage of a ban on partial birth abortion that she appears to have advocated for the ama to

suppress or modify their medical view. she made a deliberate decision to advocate for partial birth abortion even to the point of working to deceive the american public about the medical science related to the procedure. on this panel tonight, we've heard quite a bit about the role of women in the judicial system. let me just say as a woman that this deeply offends me. thank you. >> tony perkins. mr. perkins is the president of the family research council. he is a former member of the louisiana legislature and a veteran of the united states marine corps. he received his degree from liberty university and his mpa from louisiana state university. mr. perkins, your entire statement will be read in the record and you may proceed. >> thank you, mr. chairman.

thank you for the invitation to testify. as one who spent a number of years in uniform as a marrne and a police officer, my remarks will focus primarily on miss kagan's treatment of military prekruters. as has been pointed out while dean of the law school, she defied the requirements of federal law. her viles was motivated by her opposition to the military's prohibition against open homosexuality. this incident combined with the record of her rewriting of the medical finding on partial birth abortion raises doubts as to whether she possesses the temperament and impartial nature required of a supreme court justice. on the former topic, which miss kagan did comply with the law, she wrote to the campus making clear just how grudging her cooperation with the military was in light of the military's repugnant policy. she declared, quote, i abhor the

military's discriminatory recruitment policy and she added that the policy was a profound wrong, a moral injustice of the first order, end quote. a moral injustice of the first order. of all of the moral injustices throughout history that man has inflicted on man, she equates them to a military policy enacted by congress. mr. chairman, the purpose of our military is to fight and win this country's wars. war is the most difficult human activity, bar none. it requires organized groups of men and women to act with strategic and tactical lethality. in war, the normal ways of living are completely sacrificed in the harsh, punishing environment of combat. even in these time settings, in units not engaged in combat, great sacrifices are required. military life must be characterized by regular lack of

privacy and repeated sit weighs of forced intimacy. as military experts have testified, and this congress has affirmed, in such an environment, it is not a moral injustice of the first order to minimize the sexual exposure that such conditions force on soldiers, sailors, marines and airmen. it is the only sensible and effective way to run a military organize. it should be noted that the current law on homosexuality in the military has been repeatedly challenged and upheld by the federal courts. and the supreme court upheld the solomon amendment. some have defended miss kagan's actions regarding the military claiming they do not demonstrate that she is antimilitary. there is truth in that. only in that she does not oppose the military simply because they are the military. however, clearly she does oppose the military because they have not bowed to the demands of the sexual counterculture.

her record would suggest that she wants to use the military to advocate radical social policies more. this becomes very clear when one examples the brief that miss kagan signed on to in the solomon case. it began with a sweeping declaration that is -- a society that discriminates based on sexual orientation or tolerates discrimination by its members is not a just society. kagan condemned not only a society that discriminates but a society that tolerates discrimination by its members. i abhor discrimination based on race and other characterists, but the implications of this statement are chilling for the freedom of speech and the freedom of religion in america. it should alarm those who live in the 45 states that define marriage as a union of a an and a woman and to the tens of millions of americans who affirm biblical moral teachings.

elena kagan would strike down any marital statute, including the federal defense of marriage act, which defines marriage being between a man and a woman. at question is not whether miss kagan is a good person. or even if she is skilled in the law. what is in question is her ability to be an impartial jureest. her record makes clear that she is an impassionate activist. that only sees laws and in some cases science as mere obstacles to overcome in pursuit of a far left agenda. we do not need a justice on the supreme court who sees it as her life mission to write the homosexual version of roe v. wade. these positions and the temperament accompanying them make her unfit to sit as a justice on the supreme court and i urge the senate to reject her nomination.

>> thank you, mr. perkins. and now peter kursinou, a partner in the labor and employment practice group and serves on the u.s. commission on civil rights. he is a former member of the national labor relations board to which he received a recess appointment from president george w. bush. he received his ba from cornell university in new york state. and his jd from cleveland state university. >> thank you, mr. chairman. i am a member of the joous commission on civil rights. u.s. commission on civil rights was established pursuant to the 1957 civil recognizes acts to act as a national clearing-house for information related to denials of equal protection and in furtherance of the clearing-house function, we reviewed the documents related to civil rights authored by miss kagan from her time as a clerk

to justice marshall through her tenure as solicitor general. our review revealed at least two significant concerns with respect to miss kagan's approach to cases involving racial preferences and school assignments, which approach has been rejected by the supreme court in at least six cases. the first concern pertains to miskagan's position on the third circuit case. contending that title seven permits the use of racial preferences by employers for the purpose of achieving diversity. the board of education laid off a white teacher rather than a black colleague for the express purpose of increasing diversity in the business education department. however, this was done despite the fact that there was no evidence of discrimination against black teachers. no evidence of workforce segregation. no evidence of a manifest racial

imbalance. in fact, black teachers were actually overrepresented among the faculty relative to the general population. miss kagan's position went beyond what the supreme court has held to be permissible, voluntary affirmative action. in essence, miss kagan's position would give employers a wider berth to make employment decisions on the basis of race. the second concern pertains to miss kagan's endorsement with three texas school districts' plan to assign students to a school on the basis of race. solely for the interest of racial balancing but without any evidence of either -- although miskagan found the school district's -- to be amazingly sensible.

the supreme court rejected this approach involving a seattle school district. taken together, miss kagan's position in these cases would give employers and administrators license to engage in racial engineering on a far more expansive scale, effectively making decisions counting winners and losers on the basis of race in many circumstances. evidence introduced shows that when the courts have opened the door for racial engineering just a bit, preferences have expanded. for example, evidence introduced in two recent hearings shows that more than ten years after the supreme court's decision, federal agencies persist in using race conscious programs in government contracts verses race neutral alternatives. moreover, even though the supreme court struck down the use of -- requiring that race be

no more than a thumb or feather on the scale in the admissions process, powerful rals preferences have shown no signs of abating. at one major university, racial preferences are so great that the odds that a minority applicant will be admitted are 250 to 1. at another major university. the odds are 1,115 to 1. that's not a thumb or a feather on the scale. that's an anvil or a bus. when miss kagan's position to prevail, the concept or principle of equal treatment would yield increasingly to preferential treatment. furthermore, miss kagan's endorsement or embrace of racial engineering would harm the minority whose are the beneficiaries of the preferences. evidence from a 2006 civil rights commission hearing showing there's increasing data

that racial preferences createe what's known as a mismatch effect that increase the probabilities that minorities will fail. for example, like law students where the beneficiaries of preferences are 2 1/2 times more likely than their white comparatives not to graduate, four times more likely to fail the bar exam on the first time and four times more likely never to pass the bar exam. miss kagan permits employers, administrators and others to single out certain groups for preferential treatment today. there is nothing that prevents those same employers from shifting their preferences to other groups tomorrow. contrary to the color blind ideal contemplated by the civil rights act. thank you, mr. chairman. >> thank all the witnesses for staying within the five-minute time limit.

david copelis the research director of the independence institute and an associate policy analyst. he is also a professor of advanced constitutional law at denver university. he received his jd from the university of michigan law school and his ba from brantd university. >> thank you. the last three days have raised concerns that justice kagan could destroy rather than defend second-amendment rights. you've been offered platitudes that heller is settled law and that the nominee knows that second amendment rights are very important to many americans. last summer, miss sotomayor offered nearly identical assurances, yet this monday justice sotomayor and justice breyer declared that heller should be overruled. these rights which so many americans consider so important will be eliminated by judicial fiat. miss kagan has rejected every opportunity which this committee has offered to provide any

meaningful commitment to the second amendment. to the contrary, she has even refused to affirm that the declaration of independence has any value in guiding constitutional interpretation. while the declaration states that protection of inalienable natural rights is the very purpose of government, miss kagan will not answer whether the natural right of self-defense is among those inalienable rights. we know from history that jefferson and madison and the rest of the founders and their intellectual ancestors consider self-defense to be one of the most fundamental of all rights. as a supreme court clerk, justice kagan wrote, i'm not sympathetic when a man challenged the d.c. handgun ban, which the heller court later found to be untons cushional. i'm not sympathetic is the expression of her own opinion. great hospillty even to the political advocacy of second

amendment rights. as my written testimony details a few week us go the white house provided one explanation which on its face was not credible. on tuesday, miss kagan provided an entirely different explanation. she said that the nra, kkk line was her record of a phone conversation with someone else. but a memo from the department of justice to miss kagan at the white house reflects that it was miss kagan herself who specifically wanted to know if the volunteer protection act would apply to either the klan or the national rifle association. as miss kagan has accurately testified, supreme court judging is not a robotic process. there is a great deal of judgment involved. in the near future, there will be judgment about whether to overrule heller or mcdonald versus chicago. even if those cases remain intact, there will be judgment about what types of antigun laws infringe second-amendment rights. a core which is unsympathetic to

the second amendment could construe it so narrowly that it would provide little protection for the rights of the american people. in the clinton white house, miss kagan was the architect of an executive ban on the imp port of 58 rifles. her white house aide characterized the ban. we are taking the law and bending it as far as we can to capture a whole new class of guns. senator leahy wrote to the clinton white house to strongly protest what he called using a presidential directive to avoid the normal legislative process. the kagan/clinton gun ban required that the word or in a statute be read to mean and. it required that the term supporting purposes be read to mean only hunting and not target shooting. the kagan ban was premised on the legal theory that the only type of legitimate hunting rifle is the type used by a wealthy person who could afford to pay for a professional hunting guide. the ban further defined sport hunting according to the restributive rules of 13 states

rather than the rules of the majority of states. on tuesday, miss kagan told this committee that her gun control work in the clinton white house was just to keep guns out of criminal hands. but the clinton/kagan gun ban prevented all law-abiding citizens from afiring those rifles even after passes a background check. the second amendment cannot long endure without a robust first amendment. it is clear that not since robert bourque has the committee held hearings on a supreme court nominee with such a well-established record in favor of substantially contradicting first-amendment rights. miss kagan was a great dean at harvard. she is expert on constitutional law, highly intelligent and has a fine sense of humor. neither or testimony nor her professional record have given you reasons to believe that she would protect the second amendment rights of the american people. thank you.

>> thank you. our last witness is william olson. he's the principle of the law firm of william j. olson, pc. he received his jd from the university of richmond and his ba from brown university. mr. olson? >> thank you, senator schumer and senator sessions and senator hatch. our law firm represents one of the nation's leading second amendment groups, gun owners of america. we have filed amicus briefs and supreme court cases such as heller and mcdonald. despite the court's decisions in heller and mcdonald, americans understand that the right to keep and bear arms continues to be in jeopardy. both victories were achieved by narrow 5-4 votes. and miss kagan is not a person who could be expected to defend the second amendment. early in her career, miss kagan evidenced this hostility to the people's right to bear arms as a law clerk to justice thurgood marshall.

i'm familiar with that case because with dan peterson i filed the only amicus brief supporting the case. i searched for my file. and here's what i found. he was an african-american man who worked at a laundromat. he had been robbed previously. when arrested, he was carrying a pistol to protect himself. miss kagan urged justice marshall to deny the petition for one reason. i'm not sympathetic. supreme court rules set forth the standards for granting -- i'm not sympathetic is not among them. if miss kagan meant that she was not sympathetic with his legal position, remember that the court had ruled that the second

amendment was only a collective right, not an individual right. had miss kagan meant she was not sympathetic, she turned her back on a man who was made into a felon for exercising his right to keep and bear arms. in 1997, in prince v. united states, the supreme court struck down the brady bill requirement that state and local law enforcement officers must work for the federal government doing background checks on handgun sales. while that case was still pending, the clinton white house was designing a strategy should it loose the case and miss kagan was in the thick of it. an e-mail reveals her role. based on elena's suggestions, i have options as to what potus could do by executive action. for example, could he by executive order prohibit a federal firearms licensee from selling aahandgun without a

chief law enforcement officer certification? miss kagan appears to have believed that the president could circumvent congress and act to impose restrictions on firearms. miss kagan then worked on the presidential directive that would suspend the importation of firearms that were legal under the law that congress had passed. when asked in these hearings by senator grassley on tuesday of this week whether the second amendment codified a preexisting right or whether the right to keep and bear arms was created by the constitution, she replied, i never really considered the question. when senator grassley asked whether the second amendment right was a fundamental right, miss kagan said it was because the majority of justices in the mcdonald case said so. the kagan view of rights is that they are whatever a majority of the supreme court rules at a

particular time in a particular case. but under that philosophy, what the court grants, the court may take away. if miss kagan does not know whether our unalienable rights to defend ourselves from criminals and tyrants comes from god as the declaration of independence states or from government, she cannot be trusted to protect our god-given right to self-preservation. during these hearings, miss kagan also acknowledged that heller is -- had precedential weight and agreed to abide by it, but refrained from adding her views for weather the case was rightly decided. when asked whether the second amendment protected an individual right, she said no question after heller that the second amendment contains such a guarantee. that's nice, but what about before heller? heller did not rewrite the second amendment. the supreme court decision only

rejected a false notion that it protected only collective rights. miskagan's answer that she is bound by heller provides us no assurance that as a justice she is bound by the second amendment as written by the frame rules. thank you, mr. chairman. >> thank you, mr. olson. now i'll give myself five minutes and then we'll call on senator session and senator hatch. my first question is to kim askue. the aba focused on the concerns raised by some critics that solicitor general kagan does not have experience as a judge. in fact, according to your report, the overwhelming view of those interviewed thought it was important to also have judges who have spent a number of years outside the judiciary. why do you believe broad legal experience outside the judicial branch would be beneficial to elena kagan if she is confirmed as a justice on the supreme court?

>> thank you. the standing committee is reporting the information that we received from the many lawyers and judges that we interviewed as part of our peer review and so what we present to you we think is the overwhelming position that we obtain in talking about that issue. it's important to have former judges and it is also important to have those who have some other background. when we look at the professional qualifications of a nominee, we look at the distinguished accomplishments that they bring in whatever area they have focused their careers on. that's what we did with general kagan. there is no question that when we look at an appellate court such as the supreme court in addition to trial experience, we don't always require trial

experience. we look at those things that relate to what an appellate court judge will do. we look for a high degree of legal scholarship. we look for academic talent. we look for analytical and writing abilities and we look for overall excellence. and based on what we were able to conclude, she is certainly preeminent in all of those areas. that is why the standing committee came to its well-qualified rating. >> thank you. mr. miss greenberger, a number of the witnesses had a view of ledbetter that might be different than yours. why do you view the ledbetter case as a departure from precedent and practice? >> well, let me just give a few specifics. when the supreme court decided ledbetter and it did so 5-4, it overturned 9 of 10 court of appeals circuit decisions that

would have decided the legal issue of whether she was allowed to bring her claim in court in lily ledbetter's favor. the only case out of the ten circuits that decided differently was the ledbetter -- the ledbetter court. that was a major departure. secondly, although the government did in the solicitor general's office in the last administration when the opinion was issued as was discussed in the panel earlier, side with good year tire, the case below had the government on lily ledbetter's side. the official and expert agency, the equal employment opportunity commission that is charged with

interpreting our antiemployment discrimination law for decades had interpreted the law to allow cases like lily ledbetter's to go forward and was in her case on her side. third, there was actually an extremely disturbing suggestion that her testimony that she did not learn about the nature of the pay discrimination until she received an anonymous note was not accurate. and there was a waived deposition supposedly establishing that she knew about this discrimination years before she filed the charge. no deposition that i have seen indicates that she had such knowledge. she has testified repeatedly that she had no knowledge.

the jury below had believed that as well. so for both the set of facts at issue, the law at issue, government long-standing interpretations at issue, this was a major change in the law by a 5-4 decision and the dissenting opinion had gone through in great detail the distress of the four dissenting justices in the supreme court. and let me say it isn't because -- the concern is not because of a desire to have one driven agenda result versus another. the concern was because the role of the justices on the supreme court is to interpret the intent of the law and apply it as congress intended it to apply. the pretty quick reversal

demonstrated that the five justices had distorted congress' intent, had shifted what the intent of the law had meant to a point that it eviscerated the ability to ever bring a pay discrimination case in court. >> thank you. senator sessions? >> thank you. m miss greenberger, i would just say that i'm going to go back and look at that case. it's amazing we have such disagreements about it. it went on on the floor. i'm not sure i fully understand it. i do know that congress felt that the statute was in artfully drawn and rewrote it so it would be clear. one of the reasons lawyers are cautioned about criticizing courts is because they may be ruling on a basis of law that might not be apparent to others. so i think we need a fair analysis.

when you say you talked to judges a bobout dean kagan, i presume unless it was in the last few months before the supreme court there were not judges before whom she had practiced or tried cases. is that correct? >> this is the lead evaluator on this. he has informed me that he is not a potted plant. and as the lead evaluator, he would like to -- >> did you talk with any judge before whom she actually tried a case before a jury or before a judge? >> no. we could talk to no judge. we did talk to judges before whom he had appeared and argued and we did talk to judges who knew her quite well in other circumstances, judges from what would be fairly described as

both sides of -- appointed by both -- presidents of both parties. >> well, according to the bar association rules, as i understand it, in examining professional competence the committee has expressly stated that it, quote, believes that a prospective nominee to the federal bench ordinarily should have at least 12 years of the experience in the practice of law, closed quote. and that, quote, substantial courtroom and trial experience as a lawyer or judge, trial judge, is important, close quote. now, i would just say that i learned so much more in the practice of law about how this magnificent, beautiful system operates than i did in law school because it's difficult to have your hands around the reality of it. and i found it difficult to --

to understand how when she did not meet those qualifications that the committee reached the highest rating for the highest court in the land. and i know the nominee is bright and that kind of thing, but i -- i do think that perhaps the highest rating was not called for. i would just share that. mr. chairman, i think we received today or late yesterday a letter from the national rifle association who studies the issue and defends the right of individual americans to keep and bear arms, has written a letter at the conclusion of the hearing opposing the nomination of dean kagan. i would offer that for the record. >> without objection. >> mr. olson, i think it was important the point you made

just brief lly because my time short. the statement when she said she -- about the right to keep and bear arms, individual right, those statements related, i think, as you correctly stated, to her statement of what the court held. it had no connection to what she might conclude. that was very similar to now-justice sotomayor who made the same statements and was in the minority, the 5-4 case voting on not to uphold gun rights. is that right? >> yes, sir. actually, that's a characteristic displayed by some people who have a philosophy called judicial supremicism, which is to say that they respect what their fellow justices say, they respect what the predecessors say, but not what the framer said when they wrote the danger of her view,

as expressed yesterday. >> i want to say i appreciate the civil rights commission taking action to deal with the new black panther case and seeking to find the truth about that because the department of justice should have the integrity in that decision among any decision, all divisions that is required. i'm concerned about that. i believe this committee is going to have to have hearings on it. i appreciate the civil rights commission for raising that. mr. copel -- did i time out? all right. >> we can go to a second round. >> okay. >> senator hatch? >> thank you, mr. chairman. let me -- let me begin with you, dr. yost.

as you know, whether abortion in general or an aborshz procedure in particular is medically necessary is a very important issue in both the political and the legal arenas. yesterday i asked general kagan about a 1996 memo that she wrote regarding political strategy in partial birth abortion issues. she noted that the american college of obstetricians and gynecologists had determined that could identify no circumstances in which partial birth abortion would be the only option. general kagan wrote, quote, this, of course, would be a disaster, unquote. the memo includes her hand-written language that the procedure may be the best or most appropriate procedure in a particular circumstance, unquote. now, that is obviously a completely different spin and it could easily have very different

impact both politically and legally. i have two questions for you about this memo. first, am i right that general kagan's positive language was adopted over it own negative language and that the supreme court relied on it in striking down nebraska's ban on partial birth abortion in the case that stemmed from it? am i right about that? >> yes, sir, you are correct. >> my second question is this. general kagan told us yesterday that she characterized the original no-circumstances language as a disaster because it did not accurately reflect medical position of the group. in other words, general kagan told us that it would not be a political disaster for the clinton administration but a public relations disaster if i

interpret her -- her testimony correctly. and i think i did, i am. it seems a little odd that she would make a comment like that in a memo about political and legislative strategy. it strikes me that this medical group is probably more qualified to state it own medical opinion about a medical issue than the white house staffer would be. but i'm wondering if in your research and analysis of this issue you have any information or an opinion on the best and most possible way to view this. and was this an example of general kagan trying to be medically accurate or politically savvy? >> i appreciate you asking the question and raising the question, senator hatch. this is one of the reasons we've asked the committee to investigate the question further because we believe there are a host of questions that this whole incident raises about her

ability to set aside her tendency towards activism on this issue. as we look at the documentation that has come out of the white house in terms of the timeline of her meeting in june, this memo in december, the final statement coming out in januaay. we just think there is a lot of questions about what the interaction was between miss kagan and the medical record. it seems to be very puzzling. her statements seem to be quite cryptic. i would add that one of the reasons that we actually revised the testimony was to ensure that the record reflected that it was not just the situation but also this was -- there was a pattern of behavior which was followed which was