intelligence programs funded 50% or morenip -- by nip. and that the n is thei appropriatedp -- in the third is appropriating funds correctly throughout departments. what are your feelings on those three measures? [inaudible] 1018? milestone authority over and tell? jim and i think there is an agreement now which was signed by secretary gates and director mcconnell that governs that authority and it is a shared arrangement on the predominance of the funding, whether it is in the department or elsewhere. non-abrogation, 1018 was

addressed in the revision to the executive order. unless language is appended to that, that amplified the process for potential resolution of disputes. if in fact they had to go to the white house. to make anyared recommendations about amending section 1018. .

for the sake of completeness, both the congress and the public when node the fatality of the investment in the intelligence in this country. >> finally, he mentioned the have looked over the bill that senator hatch and i had on setting up an actual cyber center and cyber defense alliance. are there any further thought you had to share about that bill for where we should be going on cyber? >> i think there are 34 or 35 legislative proposals now in play late in just a whole range

of cyber related issues. i do not want to preempt the its mission on picking and choosing which bill i've like. i think there are some appealing features. you are putting someone clearly in charge and had been identifiable budget aggregation. i think these are appealing. let the other thing, the cyber defense alliance would be a need for the private-sector to come together with government agencies and each other, a protected to discuss and share oinformation on the threats that

were coming in. if you have any further information, i would appreciate hearing it now or later. >> i will recommend -- secretary lynn has been very much in the lead for engaging with the civilian sector, particularly the based on doing this. he has done a lot of work and given this a lot of thought. i looked him in a dialog with him. >> i will thank you. we have tough -- to identify the threats that a coming in.

thank you very election -- much . i think there may be some classified question for that. we will wait for your response. thank you for the time and had given us. >> thank you very much. i think we have come to the end of the afternoon. for all stop, if he can let your members know, please come and get the questions in by noon tomorrow. in general clapper will address the mess in as possible. we will make a decision on whether we need a closed hearing. perhaps these questions can be asked in writing. if not, we will have a closed hearing. we will try to move this as quickly as possible. well done, in general. thank you, everybody.

the hearing is adjourned. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010] rohm & hoss ahead -- tomorrow morning we will bring you live questions of the prime

minister's questions. well did the camera is in washington, and sncc clegg -- while david cameron is in washington, nick clegg will take questions. immediately following prime minister's questions, william haig make a statement about afghanistan and take questions from members of parliament. >> c-span, our content is available on television, radio, and online. you can connect with this on twitter, faced the, in youtube and sign up for our alert e- mails @ c-span.org. and>> today we are at signature air out cited the new orleans airport. we are transporting brown pelicans from the center here in louisiana to the tampa bay, florida area. >> we have 32 birds today there

will be released. they have benefited. >> now they are getting riled up.

>> up next, security and exchange commission chairman mary schapiro testified on capitol hill about wall street regulations. then the state judiciary committee vote on elena kagan's nomination. later, "washington journal."

on tomorrows "washington journal" jane and how agencies are organized. brian bilbray on washington. we will talk about the buildup of counter-terrorism capabilities since 9/11. the fda prescription drug approval process. "washington journal" is live beginning at 7:00 a.m. eastern time. >> c-span is available in of a 100 million homes. it is all as a public service created by america's cable companies. >> the chairman of the sec told congress today that her agency

had increased the enforcement activities in the wake of the 2008 financial crisis and has implemented reforms to avoid repeating past failures. mary schapiro's testimony was her first public comment since the financial regulation bill passed in congress last week. it gives the sec new powers and responsibilities. this is a little more than two hours. affec>> each side will have 15 minutes for opening statement. without objection, they will all be made part of the record. good morning. we need to consider current performance in future plans of the united states securities and exchange commission. when taking over the agency 80 months ago, mary schapiro of face considerable challenges, perhaps the greater than

restoring the reputation in the wake of the collapse of sizable investment banks and the revelation of $65 billion and bernie madoff fraud. this ponzi scheme made it clear that the commissions examination, oversight, and enforcement programs had serious weaknesses when required substantial reforms. during her tenure, at she has pursued an ambitious goal of restoring market confidence. she'll shake it up the commission senior was she has already accomplished much to. also faces many more hurdles.

today congress will carry out its oversight mandate by closely examining what the commission has already done to better protect investors. and maintain a fair, orderly, and markets. this is a first admit that i intend to hold. under the reform law, the commission will write the police more than 100 new rules on issues like the sale of derivatives, the fiduciary duty

of broker-dealers, the nomination of bork directors by investors and are rotational -- an arbitration clauses. the law will require the commission to complete studies under various deadlines a . also subjects rating agencies to greater accountability. they aim to modify the structure of the agency to make it more nimble and responsive to the ever-novel innovations of wall street. in addition to the other wall

reforms, the bill contains my proposal to require an independent and comprehensive examination and overhaul of the commission. this effort will ensure that a fresh look at the inner workings of the agency is taken in order to help rectify any remaining problems and to make sure that the commission and the partners can effectively and efficiently detect and stop wall street for lobsters. as we proceed today, we will review the recent developments that have garnered headlines on the front pages of america's newspapers. for example, we need an update about the structural reforms to put in place after the market plunged on may 6. we need more light on last week's eye-popping 5 $50 million settlement from goldman sachs for .

i am hoping this will be the first and not the left brought by the commission against a wall street behalf whose fund toxic mortgages into financial opportunities. too many americans have lost their retirement mistakes. we must continue to work to improve their effectiveness of the support agency. the chair recognizes the gentleman from new jersey for four minutes. >> i thank the chairman.

i think there is a lot on the street these days. i am proceeds we are having this hearing to do our proper oversight and explore the myriad of issues that are important to the market. one of the toppings -- top things is to begin a far- reaching set several makings. of the new rule making, there is one estimate of 95 or more under the purview of the sec. there are concerns that the timetable for finalizing visuals is really not appropriate and will cause the sec to move too quickly on items that should be considered a reasonable manner. these concerns are magnified because much of the rulemaking

must be done in a joint manner with the sec, in making the process even more complicated. the rule making is in addition to the number of major items that the sec is already working on. we review whether the trades proceed too fast. while that can be difficult for the human mind to fatten the speed for which there process,

it will likely produce a host of unintended consequences. the quiddity the civilian the curtailed. a another could be increased. i want to highlight a portion of my april 22 letter on the market share to read these. i expressed concern that the commission of a " request for comments respecting the interest of long-term and short-term investors seem to focus on a perceived conflict between such groups with little or no reference to the interdependency of these groups in the equity market structure." i am hopeful it is reflective of the fcc's framework and urge the commission for it to be determined. it benefits the thing as a whole.

another item i have touched on is to what extent union or civil service protections are hampering the chairman's ability to properly disciplined or fired sec employees for either engaged in or improper misconduct in the workplace? as governor christie has demonstrated so very well, everything needs to be on the table as we read examine issues that may be contributing to an overly costly or inefficient for an effective government. the taxpayers in my state and country deserve nothing less and cannot afford to do anything less. the securities investor corp. is supervised by the sec. i would be interested in hearing

what her thoughts are and whether it is just for a corporate for the sipc to be pursuing so-called "fallback provisions" from investors who are lost millions because of madoff's behavior . and who once i have touched on a really describe the service. i appreciate the comment with regard to the regard to future hearings. that is why it is so important we have this hearing today. i appreciate the chairman coming to testify. >> thank you very much.

i will here for three minutes from the gentleman from new york. >> thank you, mr. chairman. during the course of today's hearing, we will discuss the role of the sec in the passage of the data/franc bill, the most important financial bill since the great depression. once president obama signed the bill into law tomorrow, the sec will become responsible for propagating an enormous number of new rules creating five new offices and undertaking several new studies, most which must be completed within the year or to. this morning i like to discuss security. three weeks ago, president obama signed a comprehensive ira sayn since act into law. this legislation expands the type of transactions a american firms are prohibited from

entering into so as to preclude selling iran refiner petroleum or selling them in good services that develop the nuclear center. the bill bans u.s. banks from engaging -- they facilitate

human rights abuses. the sanctions are -- are crippling. they should be. in nuclear iran poses exit is a threat to the united states and it out is that companies must be held accountable for developing nuclear capabilities. what does it have to do with our capital market? the vintage of for investors to suffer losses are at inference determined to be in violation of the new sanctions. the sec has a very important role to play under the comprehensive iran investment act. american investors need to know if the companies and fund in which they invest face potential and substantial sanctions will

the task with ensuring they have ready access to information pertaining to individual sanctioned. this morning i present you with a letter for these issues. i thank you for your continued hard work. i yield back the balance of my time. >> thank you. we will now hear from the ranking member of the full committee, mr. baucus. >> thank you. by thank you for holding the

hearing which i think mr. garrett and i requested. this is action in the second oversight hearing. the first rohm & hoss class -- the first one was last july. we appreciate you being here today. i understand he inherited a commission with a tarnished reputation and a significant personnel problems. i think you have performed admirably. clearly, more fundamental improvements are necessary. if there are legal impediments for him missing from new transforming the agency, it is our hope fed we can use these hearings to learn what measures can be taken to manage the commission more effectively and demand high ethical and

professional standards. we have experienced the collapse of bear stearns, of lehman brothers, and the consolidated supervise and deprogram -- supervise and the programs. they give us the more reasons to conduct aggressive oversight in to demands along with you that the sec be more accountable at all levels of agency. what many of us find particularly troubling is that the majority of the sec's problems were caused by the failure to use its existing authority to protect investors to address the fraud and other practices in heavy regulated

areas of our capital market. i want to conclude my statement today by saying this -- as we have seen a subprime lending when everyone is in charge of a problem, and no one is in charge. shared responsibility resulted in inaction because the agencies were never able to agree on what action to take or even recommend. we also saw the with credit cards. now we have been dodd/frank after they will sign into law tomorrow. it gives regulators vague new authorities to regulate various entities. you have all these regulations they have trouble enforcing. then you have a whole nother set of regulations and rules. for instance, as a result of this legislation, utilities will

be required to process a fast dollar amounts of derivative processing -- products. today that is just between different entities. it is not go between a clearing house. will later become the next two big to fail entities? is there an implied government guarantee that they will not be allowed to fail? the sec or the cftc the primary regulator of many of the clearing houses and financial market utilities today. will that continue to be the case? the federal reserve in many cases appears to be the ultimate regulator for the umbrella operator of many institutions were your the prime rate lifted it.

will they have an independent regulatory role? these questions may not be answered for years. therefore, the uncertainty that existed before the legislation passed will only increase. finally, this legislation increases the threat that the sec will create more uncertainty in our capital markets to the exercise and new powers to reform practices that in no way contributed to the financial crisis. behalnonetheless, they require e sec to address these problems. obviously, you are faced with a lot of questions. one of them is, are ya old simile in charge? do you have to work with the

other agencies? that is going to be something that will require additional oversight and coordination and not, between the congress in your agency but between the agencies. thank you. >> thank you. >> now we will hear from a gentleman in california. i want to remind the committee the we have assigned times. we will hold to that time. let's hold to it, three minutes are allocated to the gentleman from california. >> thank you. i like to associate myself with the statement of mr. ackerman. it is critical that the sec make sure that investors are aware of those corporate action that would cause the issue some -- the issuer to be said to sanctions. many people have mentioned the

madoff case. i should point out that that should have been detected in the first 50 minutes of preeti. the first -- review. the first thing that should happen is to look at the auditors' report. that would raise the issue, is the auditor large enough to do the audit? madoff would have been detected in 50 minutes if that question would have been asked. i hope some financial statements be reviewed by broker-dealers investment advisers, etc. and that should include the most basic question that is, who is the auditor? are they qualified to do the audit? i want to focus on credit rating agencies. the chairman has excellent language that will be assigned a tomorrow. it may not bryan -- be effective immediately. they really do not have the fed

until the sec takes action. the first of these is to make sure it the agencies are fair. right now have a circumstance where bonds of corporate issuers get one set of grades. i think there are misled into the the corporate our butter. when an issuer defaults its revenue stream continues. therefore, usually the bondholders are paid in full. if you held bonds and circuit city, you are aware that when the company defaults, the revenue stream is inundated by the going out of business sale. municipalities do not have going out of business sales. most importantly our the provisions designed to make sure that the issuer does not

select the credit region upheaval -- credit rating agency. i submitted an amendment to require the fcc to establish a panel to select the credit rating agencies -- sec to establish a panel to select the credit rating agency so. a surfer and was able to get the expanded language into the bill. i want to make sure that the fcc is dedicated to the objective of that amendment but a that is whether you go with the exact franken language or not. i yield back. >> thank you very much. now we will hear the gentleman from california 4245 minutes farook -- california for two 0.5 minutes.

>> in the united states, we have a history of tinkering around the edges we add additional agencies when a crisis comes. in britain, and they are more open-minded about three organizing an entity when it has failed. they will even disband the agency altogether and start fresh. we have heard time and time again about the over-lawyering of investigative ineptitude. the fact that it to get agency's 16-years to uncover the madoff ponzi scheme and the fact it would have been until his deathbed. this shocks a member of the committee. they knew about the stanford

ponzi scheme since 1997. according to the inspector general, one sec supervisory use to her work t-bill account on virtually a daily basis to conduct business on behalf of the operator of a ponzi scheme in arizona. these problems did not arise from a lack of funding but rather a deeper structural flaw with in the sec. how does congress treat an agency that has performed so poorly? we reward it. the bill awaiting the signature expand the regulatory authority without reforming the agency. the agency will profligate 123 rules, established seven new offices. this is in contrast to the approach taken by the brickts.

you have committed to a lease begin the reformation of the sec. i commend you for that for t. time will tell where the real reform can come or whether we will be better sir taking it out of the playbook. i look forward to your testimony. >> the recent settlement totaled over five and a $50 million. last summer, we had an oversight meeting in boston where i expressed concern about the resources available to the sec to perform its duties.

a look back at the budget reveals the wealthy financial markets were exploding in size and complexity, the budget remained fairly flat and in some cases actually shrank. i am pleased they received enhanced resources under the new bill. it also gets a lot of new responsibilities as well. you have a tough road to hoe. i would like to work with you. i had an opportunity to meet with some of the head the department to have appointed infrastructure -- you have appointed in this structure. i am optimistic. i know if you have a tremendous task in front of you. i like to hear about how we are going to tackle that and get down to the mechanics. thank you for attending. >> thank you.

we will now hear from the gentleman from texas for 2.5 minutes. >> thank you. after our last hearing, it was made clear that under the previous management, the sec did have the authority under the supervise the city's program to do something about the dangerous levels of leverage at lehman brothers. they chose not to exercise that authority. it does not dissimilar to the situation at aig. the former director of thrift supervision testified that tf did have the authority to properly regulate aig. they chose not to do it. the case after case, regulators had the authority to prevent behavior that contributed to significantly to our economic debacle. whether it was a matter of ignorance, negligence, incompetence, or simply making a mistake -- we do not know.

so many of us find it somewhat ironic that the now the regulatory bill that is awaiting the signature of the president in many respects rewards regulators who contributed to the financial crisis with yet more regulatory authority and of little or nothing about ignorance, negligence, incompetence, and simple mistakes. the sec will be getting significant new authority in addition to their tremendous workload. i've heard some estimate of 95 new role makings. some say wonder 23. -- some say 123. all this new authority is against the backdrop of the lehman brothers failure, the- ponzi scheme, and the sec pornography's scandal that revealed officers clearly had more time to you pornography

than they did the police security fraud. i hope they are capable of improving their track record while taking on these new responsibilities. as we look around, when it the greatest challenges we have is not a lack of capital. it is a lack of confidence. i am curious with all this new regulatory authority that will be granted to the sec, how will the sec handled the levels of uncertainty that had been created by this new law? the fed reports that public companies are sitting on almost $2 trillion cash and liquid securities. we need to get the money out of the stand in onto the playing field. thank you. >> thank you. now we will hear from the to demand from georgia for 1.5 minutes. >> thank you. welcome. you have quite a challenge

before you with our newly about to the side wall street reform bill. as you go about your testimony, i would be interested for you to sort of explain to us your interpretation of what you see your role under this bill, particularly in relationship to protecting our investors, stabilizing markets. how will you regulates over-the- counter derivatives? how will you rein in expenses -- excessive risk-taking? we want to know your concerns about the implementation of your impending expansion of the duties. i am particularly concerned that you expressed to us today how you see your role playing out in the implementation of the iran stations act? you have a very critical role in fact, especially given the fact that the real meat and potatoes

of this and sanction bill is within the financial community as well as investment and their infrastructure of the importation of refined gasoline. i look forward to your testimony. thank you for being here. >> thank you. now we will hear from the gentleman from california for 2.5 minutes. >> thank you. thank you for scheduling this hearing. i look forward to hearing about her agenda. as you know, i remain very interested in how the sec court in a the inspections and examination staff and the activities of the policy-making division of the trade and market and investment management. i am interested in how an update on how you integrate processes to avoid the stovepipe a. your post-may of reforms indicate any protocol and the

new york office -- post-madoff reforms to indicate any protocol in the new york office. i hope you can address how this kind of cross-training is working. how could it work across the nation the we can better examine the madoff scandal sooner? i yield back the balance of my time. >> thank you very much. now we will hear the gentleman from indiana for one minute. >> thank you for holding this important hearing today. we continue to see signs of an economic recovery. it is critical we take steps to prevent another crisis of this depth and duration. when it the most important things the sec can do is to be the most effective market regulator, protect investors while encouraging capital formation of investment.

the sec has undertaken any reforms to protect the interests of investors. i hope that it will live up to it mandated protection. as the economy recovers, it is imperative we focus additional firepower on behalf of investors who might otherwise lose their confidence in the integrity of these markets. thank you. i yelled back. >> thank you. it is my pleasure to introduce and welcome as one of our witness -- our only witness -- the chairman of the securities and exchange commission, mary schapiro. without objection, your written statement will be made part of the record. you are also recognize for five minutes to summarize your testimony. we will try to be a little lenient because of obvious indicated interest in a statement. if you will, welcome to the subcommittee. if we look forward to your statement. >> thank you.

i appreciate the opportunity to testify on behalf of the sec. when i testified before the subcommittee last year, we were enmity from an economic crisis that threatens our system. the markets for trying to regain a firm footing. we have embarked in a conscious effort to become a more nimble and responsive regulator burd. provide an overview get taken to fulfill this mission. i read bogus on the mission. we hired new leadership across a agency, procedures, encourage

collaboration, and created a new division to improve our understanding of trading practices. we've restructured our enforcement division, creating specialized unit to tackle the most complex types of cases. we eliminated a layer of management, redeploying investigators to the frontline. our program also is in the process of restructuring. the changes are already bearing fruit. in fiscal year 2009 compared to the previous year, and the enforcement division more than doubled the amount of civil penalties, more than double the temporary restraining orders, more than doubled the number of formal orders of the investigation, and more than doubled the amount of funds restricted to injured investors -- over $2 billion. further thanks to our support, we were able to upgrade their information technology capability.

one of the first initiatives we launched was centralizing all our existing complaint into a new searchable data base. we are in the middle of building a new system to record and track misinformation for the entire agency, which we expect to deploy later this year. where also building analysis and chilled to better priority this -- we are also building and analyzing new tools to better prioritize this. we are not and is working to make the agency more and faster focus of the roles as well. in the past year, we finalize roles designed to prevent -- improve investor protection. she is providing greater protections to investors, strength and credit quality, liquidity, and maturity standards, to create a stronger and more robust framework for credit rating agencies, to

curtail play practices by advisers. we have proposals to provide greater disclosure about target date funds. we've taken steps to improve market structure and functioning with proposals to address orders, dark pools, and sponsored taxes. the sec issued a concept release raising questions and seeking input to improve prices every and strengthen market resiliency and our equity market. after may 6, which acted quickly to build upon existing rules and protect investors in the process. the commission has approved a pilot sick of record program for s&p 500 stocks. we have been working to expand it to include russell 1000 stocks and certain funds. we propose rules designed to bring order to the process of

breaking erroneous trade. we proposed treaty pena audit trail to create a single repository of all orders, a trade, and quotes. it is to significantly expedite market reconstruction suggests those in connection with may 6. we have begun to prepare for the significant implementation requirements associated with financially guidry reform legislation -- a financial regulatory reform legislation. we are developing estimates on how best allocate resources for the implementation efforts. i believe we haven' had a productive year. we have proposed and implemented rules that will improve our financial markets, provide additional transparent,

and increase investor protection and restore confidence. we want to work to become a more effective agency in the year ahead. i would be very happy to answer your questions. >> thank you very mad. -- very much. i certainly welcome you to the subcommittee. will be nice is apparent since we will not hear -- this will be your nicest appearance, since we will not be discussing the previous tender. knowing how and bodywear in assisting this committee in drafting the regulatory reform bill, can we extend our hand of cooperation to you that as you

develop your task force -- that we will have a very positive response and coordination between this committee and yourself? if you run across changes that should be made for obvious to you but perhaps you may determine that you lack the legal authority, they you will work very expeditiously to report to us and request the additional authority? >> absolutely. i appreciate that invitation to work with the committee as we work through many issues that are likely to arise to the course of implementation. >> you know, today i was asked by a reporter what is most important thing that the action will accomplish. it is 2400 pages, which are pretty heavy. to a lot of americans, they think it has to represent a lot

of nonsense, because how could anyone compile something that is to 400 pages that has meaning? as you know, the head worked on this legislation for years. part of the legislation has been enacted several times by this committee or one house of the congress. which is now have the opportunity to put it into law. do you have some reservations as to some shortfalls in the existing law? is there anything we should immediately start to work on to correct the short fault? one was pointed out on the budgetary problems and red-and- white are those budget problem somewhat restricted?

>> we are grateful for the flexibility from the sec that will allow listed maintain a reserve of bond that will help us find technology projects that we think will be multi-year projects as low as having the ability to have matched funding and present our budget to congress to do -- congress to do well not everything we hoped for, we are very grateful for that. >> i recognize the we have established a new council that you are now a new member of the economic stability council. we used to have another name for it, the systemic risk council. that being said, had the had an opportunity to examine that section, particularly the authority granted by what has been known as the "to endorse the -- a a canjorsky amendment

?" if they serve a grave risk to the economic system of the united states. having given the authority to many things, including to take apart existing organizations and from the s&l to something below the level -- and break them down to something below the level. >> i think it is a powerful tool that the congress has given to the regulators collectively. i know that all of the regulators are looking forward very much to getting together soon and talk about how the council will off rates, how we will collect information, how we

will carry out our responsibilities as a counsel and individuals. i think we are humbled by the amount of authority that we have. >> thank you very much. i see my time is about to expire. i recognize the gentleman from new jersey. >> in the opening where he ended off, i hear from constituents back home saying how could we have understood that 2400 page bill. i'd guess i do not think we could. i do not think anyone that was there the night it 6:00 in the morning did. that is probably why senator dodd and speaker pelosi said we have to pass this bill in order to understand what is in it. we will only begin to understand what is in this bill, not today,

not tomorrow, but probably years down the road. there is the problem, the lack of certainty that chairman frank was talking about the would be treated by the bill. it is the opposite. we were creating less certainty. investors will remain on the sidelines for an indefinite amount of time. one of the areas i touched upon was one of the had a year ago, which was with regard to the madoff situation. as you know, the sec has sided with the aborted trustees -- would be a board of trustees on how the equity is to be calculated. we have heard about how the sec had difficulty of covering the front before you got there. should investors in her that

they should no longer rely on the statement issued to them by their broker-dealers? should they keep a running total of their net-investments in order to avoid the claw back position later on? should they ever be exposed in a ponzi scheme? should we put some sort of statement or times on the statement in the future so they understand that these statements are not really what they seem to be? >> i do not think that is what is necessary. i do not think we should tell investors they cannot rely on account statements they receive from the broker-dealers. the vast majority deal honestly. the approach we have taken with respect to madoff quite generally is to bring together protections that we think will help prevent another and madoff

from ever occurring. for example, contained in the dodd/frank dick is for brokers to be audited -- bill is for brokers to be audited. that will help the issue with respect to a no-name accounting firm. we have approved rules that are in place, requiring that when an investment and pfizer it uses any kind of an affiliate's -- or adviser uses includany kind of a philip, it has to use a report given. we have tried to use retro protections into the system from. but correct one thing he said. we did agree.

the calculation was a money-in, money-out. the court has confirmed the reading of the law. we urge the court to do it on a constant dollar basis so earlier investors would realize the value of their money as opposed to much more recent investors. the court declined. >> most that have come before the panel recognized in a matter what we do, we find ourselves in these situations. i am talking about the next investor who was in a situation like isabelthis

administration mighto become as well-kno opposition to this amendment

the chair lays beforthe senate a certificate of appointment to fill the vacancy created by the death of the late senator robert c. byrd of west virginia. the certificate, the chair is advised, is in the form suggested by the senate. if there be no objection, the reading of the certificate will

be waived and it will be printed in full in the record. if the senator-designee will now present himself at the desk, the chair will administer the oath of office. the vice president: please raise your right hand. do you solemnly swear that you will support and defend the constitution of the united states against all enemies, mr. goodwin: i solemnly swear that you will support and defend the constitution of the united states against all enemies foreign and domestic; the vice president: that you will bear true faith and allegiance to the same; that you take this obligation

freely, without any mental reservation or purpose of evasion; and that you will wellnd faithfully discharge the duties of the office on which you are about to enter, so help you god? the vice president: congratulations. [applause] the obama

administration mighto become as well-kno opposition to this amendment

good morning. before we start, i would note that at the end of this hearing, we were all trying to rearrange things. so many of us, both parties, could attend the funeral of the

longest serving member of the united states senate, senator byrd. and many of the members of this committee were there. i know that in the final hearing with the outside witness, senators cardin and schumer and koffman stepped in to take the gavel. i see senator cardin here. i want to thank all senators, republican and democratic senators alike, for the amount of time you spend here. i should note, at the sake of possibly embarrassing him, that i'd actually stepped out prior to the end there, with the outside witnesses because some of the things i was going to have to be doing in connection with the funeral.

senator sessions sat through all of that. no member of this committee spent more hours on the hearing than jeff sessions did. i would also note that, for those of us who attended the funeral and had the ability to attend the funeral, we could not have done that, had it not been for the cooperation of senator sessions who quite properly was protecting the rights of every member on his side of the aisle, as he should, i'd expect him to. still, was -- helped us work a schedule, so that so many of us could be at the funeral. and, jeff, this has nothing to do with the merits of the situation, but i just want to publicly thank you for your help on that, and the time you spent on that. and we will note, today, we'll be voting on the nomination of

elena kagan to be associate justice of the u.s. supreme court. i outline my standards for continuing this nomination last week, and said i would vote for her. she is a highly experienced person. i wish that her nomination to the d.c. circuit court of appeals allowed her to go forward when she was nominated by president clinton, and she would have had that experience, too. but she was a -- she has been the dean of the most prestigious -- one of the most prestigious law schools, being a georgetown graduate, i'll say one of the most prestigious law schools in this country. and, of course, being solicitor general. and i note that she's received the highest possible rating from the american bar association standing committee on the

federal judiciary. her credentials and legal abilities have been extolled by many from across the political spectrum, praised by justice sandra day o'connor. justice antonen scalia. michael mcconnell, kenneth starr, miguel estrada. like william rehnquist, hufelix black and hugo, the solicitor general cage didn't not serve in the judicial monastery, but i would say her workouts is probably an additional qualification. i spoke about the qualities that led me to support her nomination last week. throughout the process, i looked to see whether the solicitor

general kagan would fairly apply the law while also using common sense. i looked to see whether as a justice she would appreciate the proper role of the courts with democracy, and trying to determine whether she understood why the law matters. in fact, what i raised with her was basically what i had done in my consideration of every single member who is now sitting on the supreme court. and my consideration in voting on several members who are no longer on the supreme court. and that is would she be the kind of independent justice who would keep pace with each of the words ascribed in vermont marble on the walls of the supreme court, "equal justice under law." those apply to every supreme court nomination, including six justices dominated by republican

presidents, each of whom i've voted for. solicitor general kagan demonstrated an impressive knowledge of the law and fidelity to it. she spoke of judicial restrain, respect to the constitution. her commitment to the constitution and rule of law. she makes clear the law and constitution, not politics or ideological agenda. i was struck that after "the wall street journal" editorialized last tuesday morning that she pledged to recuse herself in cases in which she was not involved as the solicitor general of the united states, several members of the committee took up that matter. i thought each case in accordance with the law was the right one is a pledge we have asked of both republican and democratic nominees to the supreme court. certainly, during my 36 years here. in fact, i note on the issue of

recusal, the committee questionnaire that senator sessions and i included a recusal question at the outset of this process in may. and she responded. i asked her about recusal in my opening round of questions, she responded. when senator colburn asked her whether she was advised on the health care reform bill, she responded she did not. senator sessions quoted testimony that she would recuse herself in cases in which she played a kind of substantial role. in the subsequent written question which she has every right to send two weeks ago, he asked her an eight-part question about recusal, and she answered that two weeks ago. i note that when "the wall street" editorial page which --

they have a right to do, it's an independent paper. it's always heavily republican in its outlook. when they raised the issue last tuesday of recusal, it suddenly became a major issue. and then we start hearing about questions about whether she's going to recuse herself in cases in which she's not required to recuse herself under the canons of judicial ethics. in fact, one senator asked her to recuse herself on matters, even if she had not been involved as solicitor general. of course, that is -- that would be a requirement that has never been required of anybody, democratic nominee or republican nominee. every nominee has been asked in one form or another, will they follow the canons of judicial

ethics and recusals? and she has been made clear, her strong commitment to follow federal recusal standards. she as stated in plain language she had no substantive involvement in health care reform, the underlying legal and constitutional issues. now, each is going to make out his or her mind how they're going to vote, but let's at least realize she's answered these questions and answered them under oath. i spoke to the senate more than a month ago about elena kagan's actions as dean in honoring harvard law school's long-standing policy in discriminatory hiring. no document has challenged that statement. elena kagan respects and admires military men and woman. as the father of one who served

proudly in the service of this country, as a member of the united states marine corps, that was of particular importance to me. and we've now received letters abdomen testimony from harvard law veterans with direct knowledge, and talk about her support for them. i do not contend for those who recently filibustered veterans' benefits and threatened to filibuster legislation authorizing the department of defense program and activities. i don't contend by veterans benefits or department of defense programs are not going to say that they're anti-military. but they should not at the same time filibustering those issues consented that she's anti-military. her actions demonstrate a respect for the law and our legal system, by seeking to work with it. and finally, i want to thank senators durbin and cardin for

their remarks in justice marshall in the hearing. i consider it a real privilege after i became a united states senator to meet justice marshall. and to get a chance to talk with him. and i was deeply disappointed, this giant of american law whose life was devoted to all americans was a subject of despairagement during these proceedings. he should not be by the texas law review, elena kagan recalled how justice marshall's law clerks had tried to get her rely to allow an appeal to proceed then on a discrimination claim. she wrote at that 80-year-old justice referred to his years trying civil rights cases. said all he could hope for is that a court would not rule against you for legitimate reasons, but that you could not expect the court to bend the rules in your favor.

and i agree with him on that. that's why i voted for many justices of the supreme court, and many judges, who might not share my philosophy, but i know that they'll be fair. and i will always use the same thumbnail idea that, if i walked into their courtroom, as either plaintiff or defendant, would i be treated the same? and that's all you can ask. justice sir thomas moore reminded the senate on that passage "a man for all seasons," the law is our protection. justice clark reminded us that the rules of law that best protects us for all, including the least powerful. elena kagan concluded as i do that justice marshall believed devoutly in the rule of law. he was a man of the law in the highest sense. he understood the constitution's promise of quality to its core.

i believe that she does too. senator sessions? >> thank you. mr. chairman. i've got to say, you've pushed us hard. sometimes, we didn't want to go as fast as you pushed us. but i did tell the president and you that we would do our best to be ready for the hearing before the july recess. i think we did our best to have a good hearing, perhaps people will think we did. we are now in position to vote in committee today, well before the august recess. and that meets the goal that you and the president asked to us meet. i don't think it's at all inappropriate that we take some time and be prepared to ask questions and think about the nominees. senators are so busy. the american people are busy. and they are entitled to have some time to think about the nominee before we go forward. and i just would say that we

have sort of different roles in the process. and i feel like that you are -- you gave us the respect that any minority on the committee would be -- would ask for. and to keep moments in this process, but pushed us pretty hard, too. >> pushed myself pretty hard. >> yes. on the question, you mentioned "wall street journal," a great organ of economic freedom. and they raised the question about recusal. that's what happens when a nominee is made public and people ask questions. and we thought it was a good question to ask about before the vote. and i'm glad that we were able to do that. i don't think anyone sought to disparage justice marshall who was a courageous giant of a man in fighting for civil rights, but did have an activist view of

the role of a judge. and i do think that you well to quote sir thomas moore. and i would just note that the law is a protection, but you have to follow it. and you have a right and keep and bear arms. the judge should give that protection to people. and the right to other issues that you're entitled to have should be plainly interpreted. as we deal with the confirmation to the supreme court, i thought about it, a lot of people have discussed the role of the senate. it's pretty clear that the senate, along with the president, he nominates, are empowered by the constitution to constitute the supreme court. to put the nominees there. and the president that does get the nominating, any nominator should be given some deference. but it ultimately is an

executive/legislative discussion about who should be confirmed to the court. constitutional responsibility to provide advice and consent to nominees to the supreme court is one of our most significant. it's not a coronation, but a confirmation. we owe it to the american people, to carefully examine any nominee, who may serve in the case of this relatively young nominee. 30 or even 40 years, if she served as long as the nominee she's replacing. and as you said, we want to be sure that whoever serves on that bench is fair. when justice sotomayor was nominated, she had good experience, as i said at that time. as a matter of fact, an exceptionally fine background for the court. the kind i like to see. when the president nominated elena kagan i expressed my concern with her lack of

experience. not for the lack of judicial experience, but for the lack of a robust, legal experience. there have been other supreme court nominees who did not serve as judges prior to their nominations, but for the most part, these justices have spent a number of years in the full-time practice of law before joining the court. they spent years trying cases, drafting, arguing motions. taking depositions. that's the kind of legal experience, day in and day out, practice of law that forces clarity of thought. that's the kind of experience that separate's the lawyer's layer from the political lawyer. miss kagan does not have that kind of experience. she just does not. instead, much of what she's done has been defined by her involvement in politics. that's not disqualifying. but the american people must know that a nominee for a federal supreme court will set their politics aside when they put on the robe. more fundamentally, we must be assured that a nominee

approaches legal questions dispassionately, objectively, like a lawyer's lawyer, and not like a political lawyer. so when i asked questions during the hearing, i was listening not only to the substance of her answers, but also to the way that she answered questions. because it tells you a great zeal about how someone approaches law. i wanted to note whether she would give the type of careful and clear answers that demonstrate objectivity and clarity of thought. or whether she would attempt to obscure and spin the truth. unfortunately, throughout the testimony, i believe, solicitor general kagan, repeatedly chose to provide the committee with political spin. rather than clearly and honestly admitting or describing events that were objectively capable of description. and i was quite surprised when miss kagan denied the reality that she had banned the military

recruiters from harvard's recruiting office, really in order to punish them because of the "don't ask don't tell" policy. that policy, of course, was not adopted by the military, but by congress. and it was signed into law by her former boss, president clinton. her testimony regarding this issue was at best inaccurate, and at worse, intellectually dishonest. first, she claimed at all time during her tenure, the military had good and full access but this is simply not the case. the military lost an entire recruiting season at harvard in 2005. internal pentagon documents show under dean kagan harvard was, quote, playing games with the air force. one e-mail said, quote, that the army was stone walled at harvard. miss kagan testified that the student-led group stepped in

support the military effort when harvard would not. yet, the veterans stated openly at that time, they could not take over because they were not equipped for the task. they were not happy about being asked to fulfill that role. second, she testified in banning the military from the campus recruiting office, she, quote, always thought we were acting in compliance with federal law. but again, while this might be -- might sound good, it's just not true. miss kagan clearly knew, from the time she announced her decision in november of '04 what her actions violated the law. in fact, she wrote in an e-mail to the harvard community, acknowledging the solomon amendment was still enforce, but that she had banned military recruiters in the hope that, quote, the federal government would choose not to enforce, closed quote, the law. she did not always think, did not -- using her words -- quote,

always think she was acting in compliance, closed quote, with federal law. rather, she hoped the federal government would choose not to enforce the law. those are two very different things. and i would expect clarity of her answer. third, i was surprised that -- to hear her defend actions by claiming it was good enough to grant the military the second-class access through the veteran-led organization. again, it was not good enough. and not right. miss kagan knows better because she first challenged the solomon amendment in the third circuit. she made this argument. but when congress strengthened the law in 2004 to mandate equal access, miss kagan knew that argument was no longer plausible because when she challenged the solomon amendment in the supreme court, she changed the argument,

claimed instead that harvard did not need to allow military recruiting at all. the supreme court flatly rejected her theory unanimously, calling it, quote, rather clearly not what congress had in mind, closed quote. despite the clear record, at her hearing, miss kagan returned and again claimed she believed that directing the military to work through a student group and not the campus recruiting office was good enough to comply with the solomon amendment. in other words, she argued before this committee what she did not argue before the supreme court, because she knew that was not a plausible argument for the court. the bottom line is this, when miss kagan chose to block military recruiting, the law was crystal clear she knew she was defying the law. her claim to this committee that she thought she was complying with the law is not accurate. rather than admit what she did and explain it, she chose to spin the facts in away that was

at best misleading and at the worst, dishonest. miss kagan's testimony regarding her actions in the witt case, with the "don't ask don't tell" law was challenged, was perhaps even more disturbing to me, despite the clear record, she denied the reality that she advocated her duty as a solicitor general by refusing to effectively appeal the witt decision. i spoke at length ago her actions on the senate floor yesterday. and you will be pleased that i will not go into the details now. but the fact of the matter is that the witt decision placed the "don't ask don't tell" law, a law that she has stated repeatedly she personally abhors in serious jeopardy and has made it unworkable. miss kagan chose for reasons she stated not to seek an

interlocutory immediate supreme court review of that decision. at her hearing she claimed that, quote, the question we had to decide was whether to challenge that ninth circuit decision at an early stage or at a late stage of the case, closed quote. her answer left the false impression that the government had to choose between appealing a decision then. or later after trial. but, again that is not true. the government could have taken two bites of the apple and should have, if the court did not grant their interlocutory appeal, they would still have the right to appeal at the end of trial. as solicitor general, she knew that. she also testified she believed it, quote, would be better to go to the supreme court with a fuller record, closed quote. but the ninth circuit ruling was clearly contrary to prevailing supreme court case law on deference given to military policy.

and miss kagan herself described that case law at her solicitor general confirmation hearing when asked about that. and there's no question that miss kagan personally knew the damage it would cause the military's interest if the witt case was allowed to go to trial. according to the plaintiff lawyers from the aclu they were invited to meet with miss kagan before she made her final decision to block supreme court review. and the plaintiff lawyers were told in no uncertain terms that such discovery as being proposed by the ninth circuit would enormously disrupt the military. her decision not to appeal pushed the government into a disruptive trial process. with full knowledge that it would damage the military's interest. perhaps more importantly, she failed -- she failed to appeal that decision when she knew that letting it stand would do damage to the "don't ask don't tell" law. a law she abhors.

rather than admit and discuss this honestly, i think she provided more political-type spin. it's very difficult not to include that her personal policy objection played a role in this decision. i think it was a failure to do her duty. and she promised specifically that she would defend "don't ask don't tell" aggressively before the committee. mr. chairman, there are other issues i know others would like to talk about. i'll just have a brief conclusion. and we'll end my remarks at this time. >> i thank you, senator sessions. i would note, obviously, we have the -- everybody has a right to speak as they want. i would urge now that the ranking member have given that statement, i would hope that there would be some restraint in

length. naturally, i'll protect every senator's right on either side to talk as they want. but i'd suspect that no minds in the committee are going to be changed by anything we say today. senator cole. and again, i thank you for a couple times i had to take phone calls during the hearing for taking over the claire. >> thank you, mr. chairman. i join my colleagues today in congratulating you, chairman leahy, as well as senator sessions for conducting a fair and impartial hearing for solicitor general kagan. i am pleased to support general kagan's nomination to the supreme court. her confirmation will be a milestone that we can all be crowd of. for the first time in history, three women will be serving on the supreme court at one time. general kagan came before this committee with an impressive resume.

and all the trappings of an accomplished lawyer worthy of appointment to the supreme court. during her hearings, she proved herself to be well qualified for the job. she impressed us with her sharp mind, her keen intellect, and comprehensive knowledge of the constitution and the law. she pledged to consider each case with an open mind and impartially uphold the rule of law. and she appeared mindful of the need for judicial modesty, availability to precedent, but not when it stands in the way of ending in justice or guaranteeing our fundamental rights. at times during the hearings, solicitor general kagan seemed to be somewhat more candid than previous nominees. she disavowed a purely originalist interpretation of the constitution, recognizing that such a limited approach will not always solve our 21st century problems. and i was pleased that she

unequivocally expressed her support for opening the supreme court to cameras. so i believe that with general kagan's confirmation, the american people will be one step closer for seeing for themselves, the supreme court debate, our most pressing legal and constitutional issues. like so many nominees before her, senator kagan often retreated to the generalities and platitudes that she once criticized. i am pleased that she rejected the analogy that supreme court justices are like umpires simply calling balls and strikes. instead, she did acknowledge that it determines the outcome of close cases. yet her opaque and limited answers to questions about who she is and her views on important issues left us with little insight into what informs her unique legal judgment and how it will impact those close cases.

i think it was proper for her to decline on potential case its and hypothetical facts but general kagan's refusal to, quote, grade cases, extended far beyond her obligation to avoid prejudging matters that might come before her. too often, we heard detailed explanations about the state of the law. but learned little more about what weight she would give to relevant precedent. the substance of her answers was so general at times that it would be difficult to distinguish her answers from those of any other nominee. i say this not to chastise solicitor general kagan whom i greatly respect. the problem i've outlined is inherent in our hearing process. not in general kagan. all nominees in the last few decades have answered questions with eloquent words and collegial conversations. but when it comes to their

substantive views, they say the bare minimum necessary to get confirmed. as i said before, the confirmation process demands more than that. this was the public's only opportunity to hear from general kagan more than a recitation of her resume and her knowledge of the law. in my opinion, she made small inroads, but we still have a long way to go in meeting the high standard to which we should hold supreme court nominees. nonetheless, i am voting for general kagan because she is unquestionably qualified, as a record of being a princeled consensus-building lawyer. and because i believe her judicial philosophy is within the mainstream of our country's legal thought. i am confident that she will make a superb supreme court justice and is a worthy nominee to carry on justice stevens long legacy of exemplary public service to our nation.

thank you, mr. chairman. >> thank you, senator. >> thank you, mr. chairman. as i've already announced -- it's on. maybe i'll bring it up a little more. as i've already announced i cannot support the nomination of elena kagan to be associate justice to the united states supreme court. qualifications for judicial office include both legal experience which symbolizes the past and judicial philosophy which describes the future. miss kagan lacks either of the judicial or legal practice that nearly every supreme court justice had when appointed in the history of the supreme court. instead, her experience is primarily academic and political. in fact, some of my democratic colleagues have said that miss kagan's crafting policy and political objectives are her most important qualifications for the court. i believe, instead that the boundary between the political and the judicial must be

strengthened, not blurred. miss kagan's light legal experience puts even more emphasis on her judicial philosophy which is the most important qualification for judicial service. as i said in 1993, at the confirmation hearing for justice ruth bader ginsburg. a nominee must provide clear and convincing understanding of the proper role of the judiciary in the government. unquote. after studying miss kagan's record, participating in the entire confirmation hearing, and considering the views of concerned citizens in utah and across america, i've concluded that she does not meet this standards. mr. chairman, i ask consent to place on the record a column i wrote outlining in greater detailing this. thank you, mr. chairman. miss kagan told this committee that evidence of judicial philosophy or the kind of justice she would be may be found in looking at her whole life. i took her up on that, examining

things such as her own writings as a graduate student, as a law professor. her praise for certain actions in the clinton administration and as harvard law school dean. miss kagan's record shows that she supports an activist judicial philosophy and that her personal and political views drive her legal views. unfortunately, her hearing before this committee did nothing to counter her record. it stood in stark contrast to criticism of past heari ining v and hollow charades. she was unwilling to discuss what was necessary. she was, of course, free to do so, but her choice added very little to the judiciary committee's understanding her record and her qualifications for serving on the supreme court. to repeat there must be clear and convincing evidence that a judicial nominee, especially a

supreme court nominee, understands the power and proper role of judges in our system of government. she must be committed to the principle that the constitution controls judges. that judges may not control the constitution. looking where miss kagan directed to her life and her record, i concurred that she does not meet this standard. i like her personally. i respect her academic achievements and accomplishments. but i cannot support her appointment to the united states supreme court. thank you, mr. chairman. >> thank you very much, senator hatch. senator feinstein. >> thank you, very much, mr. chairman. and i want to thank you in particular, senator sessions as well, for the cooperation and speed of this hearing. i think it is truly a job well done. so, thank you both. >> thank you. >> overall, in my mind, there is

no question about elena kagan's qualifications for this highest court. magna cum laude from harvard, law clerk to justice marshall. special advisory on this committee. adviser to the united states. and the first woman to be named dean of the harvard law school. and the first woman ever appointed solicitor general of the united states. in my view, there is no good marine to deny her appointment. her credentials place her squarely among the nation's top legal minds. in my 17 years on this committee, i participated in hearings for six different supreme court nominees. among them, solicitor general kagan stands out for her ability to order her answers to tough legal questions in a way that takes the listener logically

through the progression of her thinking and no ining and knowl law. her legal reasoning, composure, staying power, humor and directness were available for all of us to see and hear, hour after hour, and day after day. she spoke authoritatively about the state of the law. on topics ranging from separation of powers to the first amendment. from the second amendment. to the commerce clause. and from environmental law to employment discrimination. her grasp of each area of the law and her ability to reason written it, i believe, compared favorably with any of the nominees i have seen come before us. and candidly, it surpassed some. given the stark division on the current supreme court, where 5-4 decisions have overturned previously established law, it becomes more and more apparent

that we need a return to the center. and a justice who will urge moderation and who will push for consensus. elena kagan's record gives me confidence that she could be just such a voice. as a scholar and adviser to the president, solicitor general, she has worked to understand and apply the law, even when she may not personally agree with it. 29 former supreme court law clerks said this about her. during the past year, kagan has honored the finest traditions -- excuse me, former solicitor generals. kagan has honored the finest traditions of the office of solicitor general and has served the government well before the supreme court. the job of solicitor general provides an opportunity to grapple with almost the full gamut of issues that come before

the court. and requires an understanding of the court's approaches to diverse issues for the criteria for certiorari review and judicial argument. perhaps for this reason, she is supported not only by prominent lawyers on the legal side, such as walter dallinger, but also those on the right side such as former bush administration judicial nominees, miguel estrada and mike mcconnell. i, for one, have high hopes for the philosophy of moderation and restraint that a justice kagan could bring to the court. and i think her ability to convince and cajole will also be evident. so i will vote yes in strong support of her nomination. thank you. >> thank you, senator feinstein.

and senator grassley next. >> thank you, mr. chairman, after thorough review of her record and committee testimony and much deliberation, i've concluded i cannot support the nominee to be justice. when determining whether an individual should be confirmed to be a justice, we should look at their impartiality, commitment to the rule of law and legal expertise. in my opinion, judicial experience is not an absolute prerequisite for serving as a justice. however, since solicitor general kagan lacks any judicial experience and has extremely limited experience as a practicing attorney, we don't have any clear substantive evidence to demonstrate her ability to transition from a legal scholar and political operative to a fair and impartial jurist. solicitor general kagan's testimony before the judiciary

committee did not persuade me that she would be able to make this crucial transition. in her testimony, she failed to answer mainly the questions posed to her. she was not forthcoming in discussing her views of basic principles of constitutional law. this was extremely disappointing, especially since she had previously taken the position that supreme court nominees should be especially forthcoming in their answers on constitutional issues. candid answers to our questions were essential to ascertain whether she has the appropriate judicial philosophy for the supreme court. solicitor general kagan's record has not been a model of impartiality. in fact, throughout her career she has shown a strong compliment to far-left ideological beliefs. her training steeped her in deeply held legal principles that at one point she stated she had, quote, retained fairly

impact to this date, end quote. in addition to clerking for justice marshall, her liberal convictions rather than the law seemed to guide her recommendations. her marshall memos clearly indicate the liberal outcome-based approach to legal levels. in several, at patient she had a difficult time separating her liberal views and political beliefs from the law. during her tenure at the clinton white house, she worked on politically volatile issues. for example, solicitor general kagan led the fight to keep partial-birth abortion legal. documents where she inserted her own political lives in the place of science, while promoting her agenda. she redrafted language for a nonpartisan doctors' group for partial-birth abortions. she worked on a number of

initiatives. she worked closely with jose certa on the clinton administration's plans to ban guns to quote, taking the law and bending it to capture a whole new class of guns, end quote. for example, after the supreme court struck down parts of the brady handgun law in printses, kagan found initiatives to circumvent the court's decision to prevent second amendment rights. in academia, solicitor general kagan took beliefs on the law. as dean of harvard law, she actively defied federal law while banning military recruiters from campus while the nation was at war. she interpreted the law, in accordance with her own beliefs, not the law as written. the supreme court unanimously rejected her legal pin on the

solomon amendment and 81 held the military. solicitor general cage will be continue to use her personal politician and ideology to drive her legal philosophy if she is confirmed, especially if her record showed she has worked to bend the law to further her political wishes. for example, at the second hearing, kagan testified that haller and mcdonald were president and would do all to precedent. however, i worry if confirmed her deep-set personal beliefs would cause her to overturn it as precedent. i'm concerned not only because of her antisecond amend work during the clinton administration, but also in light of the memos in the sandage case, when she clerked for justice marshall, instead of providing a serious basis for

recommendations to deny certiorari. and with respect to the laws, solicitor general kagan was asked when she believed there were any limits over the individual rights of american citizens. her response does not assure me that she would about sure that any law congress creates does not infringe upon constitutional rights of our citizens. i'm persuaded she'll be a rubber stamp for personal freedom. with respect to marriage, i'm concerned with solicitor general kagan's ability to disregard her own perth beliefs to defend the defense of marriage act. under her supervision, it was filed a brief stating, quote, the administration does not support doma as a matter of policy. believes it's discriminatory and supports the appeal, end the

quote. at the end of it, she refused to say whether it was an appropriate statement to make. it's the duty of the solicitor general to vigorously defend the laws of the united states. how are we to believe she were uphold the laws as a supreme court justice. solicitor general kagan also stated that a justice could look to law when interprets the u.s. constitution of laws. i'm unaware how international law can help us better understand the constitution. if we begin to look to international law to interpret our own constitution, we're at a point where the meaning of the united states constitution is no longer determined by the american people. at the hearing, solicitor general kagan tried to distance herself from the oxford thesis where she endorsed, quote, molding and steering. end of quote. of the law to implement a judge's personal, political and social agenda on the bench.

i'm not convinced that if confirmed she'll actually be able to resist the temptation to do that. miss kagan also acknowledged thats, quote, difficult to take off the advocatadvocate's hat a on the judge's hat. i'm not persuades she'll be able to transition into a nonbiased judge. i will vote no. >> thank you, senator feingold, you're next. >> thank you, mr. chairman. first, i want to compliment you -- >> thank you. >> -- your staff, on your efforts to make this confirmation process so open. i said after last year's hearings for sotomayor that you set a new standard and here you've done it again. i truly commend you for that and i thank you and your staff for your tremendous work over the next two months.

there's no question that elena kagan is qualified for the supreme court. she lass an impressive education. she's worked at the highest levels of government. during the allergy, she demonstrated a keen mind, thoughtful analysis and a wide demand of the law. as someone who can reach out to those who you may not disagree and work together. and those skills should prove well on the court. i believe because she has not previously been a judge that she will bring a different perspective to a court that is otherwise judges. and, mr. chairman, i actually appreciated the nominee's efforts to improve the confirmation process by being forthcoming in her answers. 15 years ago she quite fairly criticized the process in an article arguing that the american people deserve more substantive discussion of the law. i can't say that she quite lived up to that high standard that she set for the nominees in 1995

but i believe she tried to answer our questions as openly and comprehensively as she could given what this confirmation process has become. chairman, i'll obviously vote for her and put the rest of my statement in the record. >> thank you, senator feingold and senator kyl? >> thank you, mr. chairman. elena kagan is intelligent, well spoken, personable and schooled in the law. she's skilled in the art of argument perhaps to a fault. ignoring her own advice in a now famous law article she did not testify meaningfully before the judiciary committee and played the same game as hide the ball as those that went before her albeit with more skill probably because she criticized the process so directly many thought she would offer a different standard. what if anything can be done about it? former chairman of the committee arlen specter who lamented that

miss kagan had not during her testimony answered much of anything said this, it would be my hope that we could find so someplace between voting no and having substantive answers but i think we are searching for a way to get substantive answers as you advocated in the chicago law review short of voting no. i confess like senator specter i don't know how we can force them to be forthcoming except through our votes. to be clear my threshold does not require answering how one would vote on issues sure to come before the court nor necessarily expressing agreement or disagreement with decisions or court opinions. it is possible to learn much about a nominee's approach to judging without committing one to a specific position in future cases. what we should expect, however, is candor and a willingness to discuss background, general constitutional principles, approaches to judging and writings and matters within the

nominee's background that bear on their suitability for the bench. in explaining why i could not support now justice sotomayor i said i thought she was disingenuous with the committee. obviously reaching such a conclusion precludes support notwithstanding other qualifications for the position. reluctantly i reached the same conclusion regarding elena kagan. her insistence on redefining military recruiting on the harvard campus. her separate but equal defense and attempt to downplay the steps she took to undermine the legal policy of don't ask don't tell were ult palletly unbelievable. it's almost unfathomable for example that someone with her legal acumen have assert ed tha we were ultimately in compliance with the solomon amendment. in her praise for justice marshall's vision of the court to say she she agreed with his

activist approach to judging. justice marshall had an enormous influence especially with brown versus board of education. no serious student would argue he didn't try to push the law if furtherance of his philosophy. her attempt to define it meaning only he wanted everyone to have equal access to the court is that there is no other word for it disingenuous. because she apparently embraces his philosophy but feared public acknowledgement would flood the concern, she fudged. in so doing she confirmed the suspicion and compounded the perception with deaccept tiff testimony. her attempt to redefine her views on november 14th objecting to the kyl amendment. her characterization of our approach as being similar to the lawless actions of dictatorships was clearly injudicious and

revealed the fervor of her position much like her characterization of the don't ask don't tell policy as quoting a moral injustice of the first order. and could suggest a viewpoint she would have a hard time laying aside if similar questions ever came before her as a supreme court justice and her attempt to distance herself from the obvious applications of her views other than gitmo obvious because it bemoaned the abuse of prisoners if guantanamo, iraq and afghanistan, and issues other than conviction and sentencing even though her letter stated that our amendment would unfortunately prohibit detention of prisoners, adjudications of guilt or innocence. she wanted to preserve her right to sit on such cases in the future. the attempt to obscure positions she had previously stated was i believe an attempt to run away from those positions and mislead

the committee. exhibit d is her dubious explanation why as solicitor general she declined to appeal the 9th circuit's ruling in witt versus department of the air force challenging the constitutionality of the government's don't ask don't tell statute. at her hearing miss kagan allowed allowing their decision to stand and accepting a remand and trial in the district court would provide the supreme court with a fuller record an would help the government, her word, show what the 9th circuit was demanding that the government do in order to defend don't ask don't tell. but a review of the opinion and record in the case shows miss kagan's explanation was entirely holl hollow. the 9th circuit had said what the government would need to prove for the federal law to survive. there was no need to develop a fuller record or seek further clarification from the courts. miss kagan's decision to let the case return to the district court simply assured that the military would be subjected to invasive trials in the witt case and in all other challenges

against don't ask don't tell. trials where soldiers would be compelled to testify against comrades to discuss their fews of a fellow soldier's sexual practice and watch as the personnel file became fodder for lawyers trying to condemn what is a militarywide policy. the government argued before the trial court such trials are guaranteed to destroy cohesion, the very thing congress sought to protect when it passed that and the trial court record shows that kagan new in advance it would harm the military interest. but she decided to thrust the government into exactly the position the military lawyers most wanted to avoid perhaps in order to keep in place and insulate from supreme court review a 9th circuit court ruling that places it in grave jeopardy. exhibit e her defense of the brief filed in candelaria.

it takes a clever lawyer to argue that it takes this immigration case but not lopez versus holder for grants certificate era. in canthat she wanted them to revoke the license of companies that knowingly employ illegal aliens. and even though the courts that have considered the issue have determined states could do precisely what arizona did. yet, in lopez/rodriguez, another immigration case she refused to appeal a decision by the 9th circuit that permits ordinary deportation hearings to be bogged down by long legal fights that a person is illegally here. the 9th circuit's decision was in conflict with the decision of other courts including the supreme court and involved a significant constitutional issue. it's difficult not to conclude that miss kagan's actions in

these two cases were driven less by the law and more by political expediency. exhibit f is the emption practice nation of several of her memos to justice marshall. miss kagan offered this explanation for one karg guising litigants as good and bad guys. for once it was on the side of the angels and one that expressed fear that the court might create bad law on abortion and/or prisoners' rights. in memo after memo one gets the sense that she was not simply channelling her boss was indeed expressing her own policy views on matters before the court and that they had as much to do with who they were as what the issues were. exhibit g is her conflicting testimony on the question of same-sex marriage. prior to her confirmation as solicitor general when she was not restricted as judicial nominees are in her ability to comment on issues that may come before the courts senator cornyn asked miss kagan a simple and direct question about her

personal views. "do you believe that there is a fundamental constitutional right to same-sex marriage"? her answer then was or at least appeared to be unmistakably clear. she wrote "there is no federal constitutional right to same-sex marriage, period." but at the hearing when i asked miss kagan to confirm her views on the subject, she distorted both the previous question she was asked and her answer. she told me that senator cornyn had asked whether she could perform the role of the solicitor general in vigorously defending doma. when i pointed out senator cornyn's question was over same-sex marriage, she asserted her answer to senator cornyn there is no constitutional right to it was merely conveying that again quoting she understood the state of the law and accepted the state of the law.

having classified that her previous answer could not be taken at face value, she then told me that as a supreme court nominee it would now not be appropriate to truly tell us her permanent views on the subject since such a case may come before the court. my strong sense is that miss kagan was at the time of her nomination to be solicitor general trying to create an impression that she did not personally believe the constitution could be read to include a right to same-sex marriage. i'm troubled by other matters. receiving lack of interest in how the federalist papers and other founding documents might interpret constitution today and allows unlimited federal regulation assuming some economic nexus however small. her suggestion that the right to own a gun might not be fundamental on after heller and mcdonald and troubling approach to free speech issues seen in how she argued citizens united

suggest she will be a judge who will let her policy preferences influence her legal judgments. for all of the reasons i've discussed i cannot support her nomination. >> thank you very much, senator. senator specter. >> i begin by complimenting you, chairman, and ranking member sessions for conducting a dignified hearing in good humor n notwithstanding the great controversies engulfing our institution today. >> i appreciate that. i tried to follow the lead that you showed in the two hearings you conducted of the supreme court, senator specter. >> well, you have outdone any such lead. in coming in the public entrance i saw an enormous crowd outside and it is a testament to the

importance of this proceeding. this is the unique intersection of the three branches of government where they all come into play and that is why it is so important. as i passed the media gallery and it is filled and the laptops are all up and working, i asked a question as to why there was so much interest here, there will not be any surprises here, not a word that hasn't been spoken again and again and again and i got the reassurance that they were playing computer games, so i was interested -- i was interested to hear that. i intend to vote aye on elena kagan's nomination to the supreme court with grave

concerns, which i have expressed because of her failure to answer questions which i think ought to have been answered and i say that especially in the context of her now famous article in the university of chicago law review where she chastised nominees by name, justice ruth bader ginsburg and judge stephen breyer for stonewalling and castigated this committee for not doing an adequate job in eliciting answers and when she came before the committee, it was a repeat performance. and my ultimate judgment to support her is because of two of her answers. while she didn't say what she thought, she did identify former

supreme court justice thurgood marshall as a role model and as she follows marshall and i think she will based on her background, she'll be in the right place ideologically and then her answers on television which i think are very important instituti institutionally as we look at the issue of separation of power, which is of great, great concern to me and it has been of -- a concern to me in the many nomination proceedings i have participated in in pressing -- in pressing for answers, because colleagues, we have seen an enormous reduction in congressional power, and it has gone on under the radar, and candidly we haven't paid enough

attention to it institutionally, and we complain about activist judges and it depends upon whose ox is being gored. i am sorry but not surprised to see the partisan split on this nomination because that reflects the ideological battleground that is going on in the supreme court today. but whether you are on one side or the other of this ideological battle, the country is being hurt, the constitution is being hurt, the government is being hurt when congressional power has been taken away and i've been very specific and i'll only summarize it only very briefly. where you have a case like morrison protecting women against violence, gigantic record, you have the court

saying it is unconstitutional because of the congressional, quote, method of reasoning, closed quote, i wonder what's going on. is there some radical transformation when the witness leaves the spot where the chairman is now sitting facing the panel, walking across the green to the supreme court? what's going on there? what's the method of reasoning? but when you have the chief justice and the associate justice alito testifying about the great deference to be paid to congressional fact finding and make no mistake about it, they said bluntly it's a legislative function, it's not a judicial function. when you start to make -- find facts in the court you're legislating and then what do they do in citizens united?

long concurring opinion by the chief justice where he took back all his testimony. took back all his testimony on stare decisis and on the separation of power on legislation. there you have 100,000-page record, the problems of funding and the political system critical to our institutions and the supreme court declares mccain/feingold unconstitutional, reverses a relatively recent supreme court decision in austin, which set the parameters for how you regulate campaign finances and they say it is an aberration. well, i guess roe versus wade could be an aberration. i doubt that brown versus board of education is an aberration but who knows when you have the

powers being taken on by the court. and then the cases the court doesn't decide and i've spoken about them at length and won't repeat it. but you have the sharpest conflict i think in the history of the country between the executive on warrantless wiretaps as commander in chief, terrorist surveillance program and congress for an intelligence surveillance act, the exclusive way to get a warrant, well, it's disregarded. the supreme court won't decide the case. comes up to them on cert and they duck it. they don't even say why they won't decide it. at least the 6th circuit had a flimsy excuse on standing, didn't compare to the dissent, and then you have the case of the survivors of victims of 9/11 or the holocaust survivors and they won't take the case and i press to see at least what cases miss kagan would take.

on the one question, which i think her refusal to answer was totally indefensible was the one on the standard that she would apply on sufficiency of a record. for years there was a rationale basis test, the congress had a rational basis, was constitutional, reformed most recently in 1968, been a few years ago out of the thin air the court comes up with a test of congruence and proportionate. nobody know what is that means. justice scalia said it was a flabby test and it was designed to allow the court to legislate. well, of all her pontificating and the law review article, that is one standard you think she would have answered, but she

didn't do it. well, where do we go from here, colleagues? after justice scalia wouldn't answer any questions in his nominating proceeding, senator deconsiini prepared a resolution on what ought to be asked and when judge bork came up that seemed unnecessary. well, it may be necessary again. i leave that for wiser heads at a later date. but what i think we can do, what i think we can do is to shed some light on the supreme court so that the american people understand what is going on. and i think if the american people understood what was going on they'd be madder than hell about it. stuart taylor has a good standard as to where to head on

this subject, a noted commentator on the court. he says that the supreme court is going to continue to do what they do. it's an article, why the justices play politics in last week's "post" and says they'll continue to do what they're doing as long as they stop short of infuriating the public. that's an interesting standard, the infuriating the public standard. well, here is one member of the public who is infuriated, but there are not too many who join me. but i think if we moved to television, we would shed some light on it. supreme court decided in 1980 in the richmond newspapers versus virginia case that there was a right for the public to be inside a courtroom. the trial judge excluded newspaper people from the criminal trial and the court said you can't do that.

the public is entitled to know. well, in a day when we get our information from tv and electronics, we ought to know. senator biden and i wrote the supreme court on gore versus bush versus gore where the presidency was decided by a single vote. the chief justice wrote back and said, no tv. but they did put out an audio and now the court turns down even the audios on a fairly timely -- fairly timely basis. this committee on a number of occasions voted out televising the supreme court. i think there's a good chance we're going to get a vote on it in the not too far distant future and i think that that is really where we have to go because i believe if the public understood if the court decides all the cutting edge questions

they've taken a lot of power for themselves and they've taken a lot of power and given it to the executive and we really ought to stand up and raise hell, colleagues, institutionally for congressional authority. thank you, mr. chairman. >> thank you and i if just might, senator graham just for a moment, one, i agree with the senator on televising. it is one thing as we all know, it is more difficult to handle the balance in a trial and a jury trial, you do have cases that you're going to protect the identity, for example, of a minor and things like that but that's a mechanical matter. in an appellate court, it is the easiest thing in the world to set up unobtrusive cameras. i wonder -- we have -- i've been in the u.s. senate ever since we put cameras in there.

first i kind of noticed them. i couldn't tell you how many cameras there are there. i don't think any of us could. we just know it's televised and done unobtrusively and i might note that the senator's statement on this ought to be required reading in law schools. >> mr. chairman, can i join in that and just say, i appreciate senator specter's remarks. he has been a principled member of this committee for very many years. the statements he's made represent deep feelings and principles that he's advocated throughout his time regardless of which side of the aisle he sat on and i believe we should all aspire to reach that same level of legal skill and acumen. thank you, senator specter. >> as i said, i hope that statement is required reading in law schools.

senator graham, you've been very patient. please go ahead, sir. >> thank you, mr. chairman. i would like to add my compliments to you and senator sessions for conducting what i thought was a respectful sometimes informative, sometimes disappointing hearing. but in the day's environment, it's a tough political environment out there where just a little over 100 days away from an election i thought you both handled yourselves well. i thought jeff played the role of a law position in a credible honorable manner and senator leahy moved the ball at a fast pace but i thought at the end of the day we could handle the pace. if you're looking for a way to infuriate the public just do what we are we're doing, congressional approval rating is at 21% and i often wonder who they are and what are they like. and so i understand exactly what senator specter's been saying about the court but we have to

remember we can criticize the court and that's great. the court is a pretty fragile body. they don't have the ability to criticize us. i guess sometimes the written opinion they can. so i'm a little respectful of that, that, you know when you appoint someone to be a judge for life that's a tremendous responsibility on that person. but at the end of the day, independent judiciary has served us well and i don't want to see that erode any further than it's been eroded in recent times. now, about the hearing, i thought it was better than most but i agree with senator specter it fell short of what we hoped to have, but at the end of the day the hearings are important. they give you an opportunity to evaluate the nominee but there are certain things you can't comment on. i mean if you think that same-sex marriage is prohibited by the constitution i doubt this is the place where you would say it since that's what you'll have to decide sooner rather than

later but the prior statements you make need to be evaluated and think my colleagues put solicitor general kagan to the test and there are plenty of reasons for a conservative vote no. very, very good reasons but i think there is a good reason for a reason to vote yes and that's provided in the constitution itself. and we all talk about the constitution as we should be as the foundation of our democracy here, but as to miss kagan, i thought she was smart, i don't think anyone has questioned that. that's good. if you're going to be on the court, good to have smart people there. she was funny. that goes a long way in my book. that shows some self-confidence that you can laugh at yourself. that shows that you're pretty comfortable with who you are. she has an impressive background. she's academically gifted. she's liberal. that one caught me by surprise but, yeah, she's liberal. sort of expected that actually. when it came to being solicitor

general, i think she's handled herself pretty well. some of my colleagues have problems the way she represented the government. i understand their concerns but generally speaking i thought she's done a good job representing our nation on terror issues which are very, very important to me. we'll have a lot of news being made today. the prime minister of great britain and president obama are going to be meeting today to talk about afghanistan so let's remember there is a lot going on and we're at war. so i think she understands we're at war. when it comes time to evaluate people, i tend to listen to what people who have known the nominee longer than i have, what they say. and particularly impressive when a conservative can say something good about a liberal. that's being lost in this country a bit. and it's vice versa but miguel estrada's letter really hit me hard. he said if such a person who has demonstrated great intellect,

high accomplishment and upright life is not easily confirmable, i fear we will have reached a point where no capable person will readily accept a nomination for judicial service. well, i'm not so sure we're there yet and hope we never get there but we should be mindful of. that's a good caution from miguel estrada about the senate and where we're going and where the nation is going when confirming judges. i asked for elena kagan to write a letter more miguel and being a smart person she took me up on my offer. and pretty bad if she hadn't. so i expected her to write the letter but here's some of the things she said. in my judgment miguel would be absolutely superlative in either role for sprocket or appellate court. i spent a great tideal of time with him and when i came dean of harvard law school i asked him to serve on the visiting committee which is an advisory body made up up of some of the

most distinguished students and dealt with him on several sensitive matters during my time. he is an extraordinary lawyer deeply knowledgeable on all aspects of our legal system and thoroughly responsible in his legal judgments of the he is a towering intellect. a prodigious capacity for work subjecting his own beliefs and intuitions to the full norris of his analysis and talents. underneath a sometimes gruff exterior, he has the proverbial heart of gold. no one i know is a more faithful friend and a more fundamentally decent person. now, that gives me hope that people who were law school classmates have taken different paths in terms of legal philosophy and political interaction can at the end of the day say nice things about each other. what does that mean? i don't know if it means much. it just makes me feel better an i think it would make a lot of

americans kneel better if we could react that way to ourselves a bit. now, about the military and harvard, the don't ask don't tell policy in the view of many is discrimination unfair and unsound. some of us who support the policy as is written take a different view. it's okay to disagree with me. i hope it's okay if i can disagree with you about that. lawyers challenge the law. she challenged the law and schools and organizations make political statements all the time in this country. i hope that's okay. in my view harvard's position on denying full access to military recruiters to their law school said more about harvard than it did the military. it was their right to do so within the law and the big loss is not the military's loss, but harvard's loss. because i can't think of a more

noble aspiration or cause for a lawyer to serve than serve his or her country in uniform. having said that, the policy changed in 2002 when the bush administration came in in 2005 it was reinstated where the military was not given equal access. in 2005, more harvard graduates entered the military than any time in history that we've been following so at the end of the day it didn't affect, it actually helped, for some odd reason to get people from harvard law school to enter the j.a.g. corps. if i believed she had animosity in her heart about those who wear the uniform i would easily vote no. i don't believe that. i don't believe that because of the people who went to harvard who are now in the military and spoke very eloquently about how she, elena kagan, inspired them.

so at the end of the day, this harvard law school exercise said more about harvard than it did point military and i want to put it in its proper perspective and i believe that she is a loyal american, very patriotic and loves the military as much as anybody else. and she hired conservative faculty at a liberal school. that shows she's willing to reach out. judge barack was her hero, the israeli supreme court justice. that threw me for a loop but at the end of the day if judge barack can be her hero and she get confirmed i hope judge bork can be a conservative's hero and y'all confirm that person. now, what was i talking about in terms of the constitution? i'm going to read to you if i can find it here, federalist number 6, alexander hamilton,

indicates that the senate should have a special and strong reason for the denial of confirmation. he continued to what purpose then require the cooperation of the senate. i answered that the necessity of their concurrence would have a powerful though in general a solid operation. it would be an excellent check upon a spirit of favoritism in the president would tend generally to prevent the appointment of unfit characters from family connection, from personal attachment and from a view of popularity. 73 of the 126 supreme court nominations that i've been informed by my staff and hope they're right were done without roll call votes. something is changing. when it comes to the advise and consent clause. all of us abhore judicial activist because it is a threat when an unelected judge takes on a role outside their sphere.

the question i have for the body, are we living in an age of legislative activism where the words haven't changed in the last 200 years but certainly the voting patterns are. the confirmation hearings themselves certainly have changed. what does it mean? senator obama was part of the problem, not the solution. one of the problems he has is when he had the role of advising consent he sort of turned it upside down and talked about qualifyings and temperament being about 70% or 80% and what's in your heart being the last. what's in elena kagan's heart is that of a good person who adopts a philosophy i disagree with and "the washington times" wrote an editorial on three good reasons i could vote no. i could give 100 reasons if i based it on my voight on how she disagrees with me. no one spent more time trying to beat president obama than i did

except maybe senator mccain. i missed my own election. i voted absentee. but i understood we lost. president obama won and i've got a lot of opportunity to disagree with him. but the constitution in my view puts a requirement on me as a senator to not replace my judgment for his, not to think of the 100 reasons i would pick somebody differently or pick a fight with miss kagan. it puts upon me a standard that stood the test of time, is the person qualified? is it a person of good character? are they someone that understands the difference between being a judge and a politician? and quite frankly i think she's passed all those tests. to say that the job of being a senator is a rubber stamp is not

true. mr. lment u, i will not vote for. mr. haines, me and senator specter gave haines a hard time because i didn't think he understood the difference between politics and the law. there will be a time when i disagree but it should be the exception not the rule. so in conclusion, we are making history, all of us, because by your very time here, you're getting to do something unique and special. what are the consequences of our time in the senate? what are the precedents we are setting? are we taking the language of the constitution that stood the test of time and basically putting a political standard in the place of a constitutional standard? that's for each senator to ask and answer themselves. objectively speaking, things are

changing. and they're unnerving to me. the court is the most fragile of the three branches. it has no army to defend herself. it has no political voice. it has no lobbyists. you can't be on cable tv. so you're at a disadvantage, so while it is our responsibility to challenge the court, to scrutinize the court, to put the nominee to a test, it is also our obligation to honor elections, respect elections and to protect the court. i view my role as a united states senator in part protecting the independence of the judiciary and making sure that hard-fought elections have meaning in terms of their results within our constitution. th