>> i wasn't -- i wasn't suggesting that the wertz test was unworkable. i think that the question going forward, and it is a question, i'm not stating any conclusion on it, but i think that something that juste scalia and others are thinking about is whether the congruent and proportionality test is workable or whether it produces such chaotic results and gives -- >> do you think it is workable? >> senator specter, i've -- i've not really delved into the question in the way i would want to as a judge reading all the briefs, listening to the arguments, thinking through the issues from both sides, but i do know that the court needs -- that congress needs very clear guidance in this area. it's not fair to congress to keep on moving the goal posts. it's not fair say, oh, well, you know, i you do is, this time, it will be objection but if you do that the next time it won't, so do i think -- >> ms. kagan, this is an issue we discussed weeks ago. this is an issue i raised in a series of letters which i'll put into the record. this is a standard which has been ar

>> i wasn't -- i wasn't suggesting that the wertz test was unworkable. i think that the question going forward, and it is a question, i'm not stating any conclusion on it,ut i think that something that justice scalia and others are thinking about is whether the congruent and proportionality test is workable or whether itroduces such chaotic results and gives -- >> do you think it is workable? >> senator specter, i've -- i've not really delved into the question in the way i would want as a judge reading all the briefs, listening to the arguments, thinking through the issues from both sides, but i do know that the court needs -- that congress needs very clear guidance in this area. it's not fair to congress to keep on moving the goal posts. it's not fair to say, oh, well, you know, if you do this, this time, i will be objection but if you do that the next time it won't, so do i think -- >> ms. kagan, this is an issue we discussed weeks ago. this is an issue i raised in a series of letters which i'll put into the record. this is a standard which has been ar