ms. kagan, welcome to our committee room. there are somewhat more people here than usual. one of the things that had chaed slightly this week is the death of senator byrd. all of us i believe it is safe to say both republicans and democratic senators are saddened by his death. no senator came to care more about the constitution and defender of our constitutional government than the senator from west virginia. in many ways he was the keeper of the senate flame and defender of the constitutio's prerogatives. i don't know how many times we saw senator byrd hold up the copy of the constitution. the difference was, he could put it back in his pocket and recite it ververbatim, the whole constitution. i know him as a mentor and a friend. he served for a time on this committee. i was honored to sit near him on the senate floor and engage in many a discussion of the senate rules or about our families, it was a privilege to stand with him against the constitution. in what the two of us feltwas an un-nece

as ms. kagan herself once noted, during her years in the clinton administration, she spent most of her time not serving as an attorney but as a policy advisor, and her notes and memoranda reveal that all too often her policy advise and her actions were based first and foremost on what was good for democrats. this kind of thinking might be okay for a political advisor, but there is a place for politics and for advocating for one's party, and that place is not on the supreme court. a political advisor may be expected to seek political advantage, but judges have a different task. we don't know how elena kagan will apppy the law because she has no judicial record, little experience as a private practitioner, and no significant writings for the last several years. so the question before the senate is whether, given ms. kagan's background as a political advisor and academic, we believe she could impartially apply the law to groups with which she doesn't agree and for which she and the obama administrati

ms. kagan's decision. ms. kagan then joined a group of law professors filing a brief with the supreme court. to its credit "fair" agreed with the government about the proper reading of the solomon amendment but ms. kagan and her fellow professors urged the court to read the statute in an artificial and unnatural way that actually contradicted both the plain terms of the statute and the position of the very party on whose behalf she had filed her brief. the statute required that the military be treated the same as employers who are granted access to campus. ms. kagan argued instead that the military be treated the same as employers who are denied access to campus. not surprisingly, the supreme court unanimously rejected ms. kagan's position saying that her group of law professors simply misinterpreted the statute in a way that would literally negate it and make it -- quote -- "a largely meaningless exercise." unquote. she did everything she could including defying federal law and making legal arguments that even

ms. kagan has less real legal experience of any nominee in at least 50 years. it's not just that the nominee has not been a judge. she has barely practiceded law and not with the intensity and duration from which i real legal understanding occurs. ms. kagan has never tried a case before a jury. she argued her first appellate case just nine months ago. while academia certainly has value, there is no substitute, i think, for being in the harness of the law, handling real cases over a period of years. >> reporter: california democrat dianne feinstein saw the issue of experience from a different perspective. >> the biggest criticism i've seen out there is that you've never been a judge. frankly, i find this refreshing. the roberts' court is the first supreme court in history to be comprised entirely of former federal courts of appeals judges. throughout the history of the court, over one third of the justices -- 38 out of 111-- have had no prior judicial experience. >> reporter: democrats also crit

in your opinion, ms. kagan, is he qualified to sit as an pellate judge? >> he's qualified to sit as an appellate judge and qualified to sit as a supreme court justice. >> well, your stock really went up with me. so, what i would like you to do since might one day be on the court yourself is to, if you don't mind at my request, write a letter to me short or as long as you like it about miguel estrada. would you be willing to do that for me? >> i would be pleased to do that. >> let's talk about the war. as solicitor general you represent the united states for the supreme court, right? >> i do. >> let's shift gears, and you had to get confirmed before this body for that job. do you remember that confirmation proses? >> i do. >> do you rememer me? >> i do remember you. >> oh, okay, good. >> do you remember when i asked you are we at war, and you said -- >> yes. >> okay. >> now that is a bold statement to make but an accurate statement. what does it -- who are we at war with and what does tha mean in terms of this nation's legal policy? >> well, we're at war w

ms. kagan has called previous confirmation hearings vapid and hollow. some probably have been. and hazarded that nominees for a lifetime position owe a greater nominees who answer questions here to follow through when they are on the court. thank you. >> thank you very much, senator graham. >> thank you, mr. chairman. congratuations. i think it will be a good couple of days. i hope you somewhat enjoy it. and i think you will. like everyone else, i would like to acknowledge the passion of senator byrd, who was a worthy ally and a very good opponent when it came to the senate. my association with senator byrd during the gang of 14, i learned a lot about the constitution from him and as all of our colleagues remember, just a few years ago, we had a real -- real conflict in the senate about filibustering judicial nominees and senator byrd and a few other senators who came up with the extraordiiary circumstances test that would say that filibusters should only be used in extraordinary circumstances because elections have consequences and senator byrd was one of the chief authors of

in your opinion, ms. kagan, is he qualified to sit as an appellate judge? >> he's qualified o sit as an appellate judge and qualified to sit as a supreme court justice. >> well, your stock really went up with me. so, what i would like you to do since might one day be on the court yourself is to, if you don't mind at my request, write a letter to me short or as long as you like it about miguel estrada. would you be willing to do that for me? >> i would be pleased to do that. >> let's talk about the war. as solicitor general you represent the united states for the supreme court, right? >> i do. >> let's shift gears, and you had to get confirmed before this body for that job. do you remember that confirmation proses? >> i do. >> do you remember me? >> i do remember you. >> oh, okay, good. >> do you remember when i asked you are we at war, and you said -- >> yes. >> okay. >> now that is a bold statement to make but an accurate statement. what does it -- who are we at war with and what does that mean in terms of this nation's legal policy? >> well, we're at war

. -- justice stevens as his replacement. -- nominated ms. kagan as justice stevens replacement. this is half an hour. [applause] >> what do you say when you introduce a man who has been coming to these events for more than 50 years? [laughter] everything that is interesting has already been said. likely, not -- everything that is not interesting has been said, too. [laughter] i will be brief. john paul stevens is a man of chicago, born and raised in hyde park. he attended the university of chicago laboratory schools. he attended the 1932 world series, which the cubs lost. [laughter] in fact, no one in this room was alive when the cubs won their last world series. [laughter] john paul stevens attended jakarta -- college in chicago, law school in chicago, practiced in chicago and served for five years, on the senate. even after he was dragged off to washington in 1975, he remained our circuit justice. this year, he became the second justice to reach the age of 90 while in active service. the other was oliver wendell holmes. [applause] his predecesso

if, ms. kagan, whether you'd be more like john roberts and more like ruth bader ginsburg. so i think we need to know a little bit more what we can expect of you as a judge. >> reporter: rhode island democrat sheldon whitehouse tried to get at that point, asking about high-profile split decisions, driven by conservative justices. >> i want to ask you what you think about all these five to four decisions and what effort the court should make to return to a collegial environment that the court, where even these highly contentious decisions, like "brown versus board of education" and "roe versus wade" are driven either by unanimous or massive majorities of the court rather than the slenderest possible majority and to try to reach across the partisan divide on the court so it's not just republican appointees acting together. >> senator whitehouse, it's a hard question you pose, because on the... on the one hand, every judge, every justice has to do what he or she thinks is right on the law. you wouldn't want the judicial process to become in any way a bargaining process or a lo

ms. kagan has called previous confirmation hearings vapid and hollow. some probably have been.nd hazarded that nominees for a lifetime position owe a someone to the supreme court and that person will affect 300 million americans, but only 100 of us get to vote. that process willegin now. solicitor general, police please stand and raise your right hand. do you solemnly swear that the testimony you are about to give in this matter shall be the truth, the whole truth and nothing, but the truth so help you god? >> i do. >> thank you. please be seated. solicitor general kagan, i know you have an opening statement and now the floor is yours. >> thank you very much, mr. chairman, senator sessions and members of the committee. i would like to thank senators kerry and brown for those generous introductions. i also want to thank the president again for nominating me to this position. i'm honored and humbled by his confidence. . let me also thank all the members of the committee as well as many other senators for meeting with me in these last several weeks. i've discovered that they call

doing, we did change back, we did precisely what dod asked us to do and dod never withheld -- >> ms. kagan, you didn't do what the dod asked you to do. just answer this -- put your legal hat on for a second. the third circuit opinion never stated the enforcement of the solomon amendment at harvard, did it? did that law remain in effect? >> senator sessions, the question was -- >> no, that's my question to you. did the law remain in effect at all times at harvard? >> the solomon amendment remained in effect, but we had always thought that we were acting in compliance with the solomon amendment, and for many, many years dod agreed with us. after the third circuit, i thought it was appropriate to go back to our old policy, which previously dod had thought complied with the solomon amendment. when dod came to us and said, no, the third circuit hasn't changed matters because we're going to take this to the supreme court, and we want the law schools really to ignore what the third circuit said, dod and we had some discussions, and we went back to doing it exactly the way dod wanted it to. >> let

kagan, unqualified justice. and that's just the way it is. the speaker pro tempore: ms. woolsey of california. mr. wiener of new york. mr. jones of north carolina. ms. kaptur of ohio. mr. moran of kansas. fro what reason does the gentleman rise? >> permission to address the house for five minutes. the speaker pro tempore: the gentleman is recognized for five minutes. mr. herger: mr. speaker, i rise to israel's right to self-defense and express my outrage over the knee-jerk, international condemnation of our strong ally following the recent flotilla incident. the activists ignored warning from israeli forces to turn away from gaza and disregarded invitations to offload supplies elsewhere. worst of raleigh, they placed israeli forces in grave dangerer by brutally attacking them. many countries immediately condemned israel. their reaction sharply contrasts with their failure to denounce the hostile behavior of iran and north korea. i applaud the obama administration for avoiding this double standard. the united states must always stand against the unfair treatment of an important ally. the speaker pr