Lindsey had an excellent opening statement on Kagen – quite good, and very snippy – for Lindsey. Once again he proved why he is one of the finest Republicans in Washington.
Like everyone else, I would like to acknowledge the passing of Senator Byrd. He 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 it was Senator Byrd and a few other senators who came up with the “extraordinary 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 the language defining what an “extraordinary circumstance” was.
I just want to acknowledge his passing is going to be loss to the Senate. And the thing that we all need to remember about Senator Byrd is that all of us are choosing to judge him by his complete career. And history will judge him by his complete career, not one moment in time, and that’s probably a good example for all of us to follow when it comes to each other and to nominees.
Now, you are the best example I can think of why hearings should be probative and meaningful. You come with no judicial record, but you’re not the first person to come before the committee without having been a judge. But it does, I think, require us and you to provide us a little insight as to what kind of judge you would be. You have very little private practice, one year as solicitor general, and a lot of my colleagues on this side have talked about some of the positions you’ve taken that I think are a bit disturbing.
But I’d like to acknowledge some of the things you have done as Solicitor General that I thought were very good. You opposed applying habeas rights to Bagram detainees. You supported the idea that a terror suspect could be charged with material support of terrorism under the statute and that was consistent with the law of wars history.
So there are things you have done as solicitor general that I think will merit praise and I will certainly, from my point of view, give you a chance to discuss those.
As dean of Harvard Law School, did you two things. You hired some conservatives, which is a good thing, and you opposed military recruitment, which I thought was inappropriate, but we will have a discussion about what all that really does mean. It’s a good example of what you bring to this hearing — a little of this and a little of that.
Now what do we know? We know you are very smart. You have a strong academic background. You got bipartisan support. The letter from Miguel Estrada is a humbling letter and I’m sure it will be mentioned throughout the hearings, but it says a lot about him. It says a lot about you that he would write that letter.
Ken Starr and Ted Olson have suggested to the committee that you are a qualified nominee. There’s no to doubt in my mind that you are a liberal person. That applies to most of the people on the other side, and I respect them and I respect you. I’m a conservative person. And you would expect a conservative president to nominate a conservative person who did not work in the Clinton Administration.
So the fact that you’ve embraced liberal causes and you have grown up in a liberal household is something we need to talk about, but that’s just America. It’s OK to be liberal. It’s OK to be conservative. But when it comes time to be a judge, you’ve got to make sure you understand the limits that that position places on any agenda, liberal or conservative.
Your judicial hero is an interesting guy. You’re going to have a lot of explaining to do to me about why you picked Judge Barak as your hero because when I read his writings, it’s a bit disturbing about his view of what a judge is supposed to do for society as a whole, but I’m sure you’ll have good answers and I look forward to that discussion.
On the war on terror, you could, in my view, if confirmed, provide the court with some real-world experience about what this country’s facing; about how the law needs to be drafted and crafted in such a way as to recognize the difference between fighting crime and fighting war. So you, in my view, have a potential teaching opportunity, even though you have never been a judge, because you have represented this country as Solicitor General at a time of war.
The one thing I can say without (sic) certainty is I don’t expect your nomination to change the balance of power. After this hearing’s over, I hope American — the American people will understand that elections do matter. What did I expect from President Obama? Just about what I’m getting. And there are a lot of people who are surprised. Well, you shouldn’t have been, if you were listening.
So I look forward to trying to better understand how you will be able to take political activism, association with liberal causes, and park it when it becomes time to be a judge. That, to me, is your challenge. I think most people would consider you qualified because you’ve done a lot in your life worthy of praise.
But it will be incumbent upon you to convince me and others, particularly your fellow citizens, that whatever activities you’ve engaged in politically and whatever advice you’ve given to President Clinton or Justice Marshall, that you understand that you will be your own person, that you will be standing in different shoes, where it will be your decision to make, not trying to channel what they thought. And if at the end of the day, you think more like Justice Marshall than Justice Rehnquist, so be it.
The question is: Can you make sure that you’re not channeling your political agenda, your political leanings when it comes time to render decisions?
At the end of the day, I think the qualification test will be met. Whether or not activism can be parked is up to you. And I look at this confirmation process as a way to recognize that elections have consequences and the Senate has an independent obligation on behalf of the people of this country to put you under scrutiny, firm and fair, respectful and sometimes contentious.
Good luck. Be as candid as possible. And it’s OK to disagree with us up here. Thank you.