What Elena Kagan could have and should have said (and still have been confirmed).

• Author: Segall, Eric J.

MEMORANDUM FOR THE PRESIDENT OF THE UNITED STATES

From: Elena Kagan

Re: My Proposed Opening Statement for the Confirmation Hearing

Date: June 2010

Mr. President, below is the opening statement I plan on giving at my nomination hearing.

Good morning, Senator Leahy, Senator Sessions, and the rest of the Judiciary Committee. It is a great honor to be here and to be nominated as an Associate Justice of the United States Supreme Court. I am truly humbled by the proceedings today.

I have two obligations here this week. First, of course, I would like to make my President proud and be confirmed as an Associate Justice of the United States Supreme Court. Second, I would like to present to you and the American people a true and accurate picture of who I am and what I believe. Those two goals are not mutually inconsistent.

Before this process turns to your direct questions for me, I feel that it is important to explain and put into context some of the previous remarks I have made about this nomination process. These comments have generated controversy over the last several weeks, and I feel I should address them. (1) A few years ago, wearing an academic hat, I wrote that the process had become a "vapid and hollow charade," and that "repetition of platitudes ha[d] replaced discussion of viewpoints." (2) I concluded in that book review that the "hearings serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government." (3) I would like to try to put a dent in that cynicism today.

I will make three points at the outset, and then I will discuss each in more detail. First, I will answer your questions about my substantive views on specific constitutional questions fully, honestly, and directly. Second, I will offer a somewhat different view of the relationship between "law" and Supreme Court constitutional decisions than this committee has heard in the past. Third, I will explain why I think both the Senate and the American people deserve candor about my views on specific issues and are entitled to it in the future from all nominees to the highest Court in the land.

I have spent my professional life discussing, thinking, and writing about hard legal questions, and I cannot pretend otherwise. As you know, I am a former Dean of Harvard Law School and have spent considerable time practicing law for the United States Government. Were I invited to an academic symposium on free speech, abortion rights, affirmative action, or gay marriage, I would have predispositions on those and other difficult issues. If you ask me questions about how I currently view these topics, I will do my best to answer them. I will not make any pledges or promises to decide any case in a specific way. Moreover, I must admit that I do not know how I will approach these issues as a judge if I am lucky enough to receive the nomination. But, I do not approach controversial constitutional law questions with a blank slate, and you and the American people have a right to know how I think.

Some people believe that any disclosure of my views on specific questions would be inappropriate. I do not agree with that position. Let's take, as an example, perhaps one of the most...