Hearing of the Senate Judiciary Committee - Nominations For Associate Attorney General And Solicitor General
CHAIRED BY: SENATOR BENJAMIN CARDIN (D-MD)
WITNESSES: THE NOMINEES TESTIFY
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SEN. CARDIN: The committee will come to order. First, let me thank Chairman Leahy for allowing me to chair today's hearing.
Today we consider two important nominations for leadership positions in the Department of Justice. These are the nominations of Thomas Perrelli to be associate Attorney General of the United States, and Elena Kagan to be solicitor general of the United States.
I agree with Chairman Leahy that this committee should move quickly to continue to restore the morale and integrity of the Department. I am pleased that this committee recently reported out General Eric Holder to be attorney general of the United States, with a strong bipartisan vote of 17 to 2, and the full Senate overwhelmingly confirmed his appointment shortly thereafter.
The associate attorney general is the number three position at the Department of Justice. This official oversees a wide range of offices of the Justice Department, including the Civil Rights, Civil, Antitrust, Environment and Tax Divisions, as well as the Office of Justice Programs.
Thomas Perrelli comes to this committee with an impressive range of experience in both the private and public sectors. He served as counsel to the Attorney General Janet Reno from 1997 to 1999. For the final two years of the Clinton administration, he served as deputy assistant attorney general where he supervised the Federal Programs Branch of the Civil Division, representing nearly every federal agency in complex civil litigation.
In that role, Mr. Perrelli supervised a staff of 100 attorneys responsible for defending the constitutionality of federal statutes, defending federal agency actions and regulations, representing both the diplomatic and national security interests of the United States in courts of law, and conducting a wide range of other litigation. He also supervised the Department's tobacco litigation team's law suit against major tobacco companies.
In the private sector, Mr. Perrelli worked for many years at the Washington law firm of Jenner & Block handling a caseload including constitutional, intellectual property in appellate cases, as well as a wide range of complex civil litigation matters. Most recently he served as President Obama's Justice Department transition team. He's a graduate from Brown University and Harvard Law School.
I also want to note for the record that Mr. Perrelli has received the endorsements of severely law enforcement organizations, such as the Federal Law Enforcement Officers Association and the National Fraternal Order of Police, as well as the National Center for Missing and Exploited Children. These letters will be made part of our record.
Elena Kagan also comes to this committee with a wide range of experience, having served as dean of a law school, a law professor, a senior official in the White House, a lawyer in private practice, and a legal clerk for a justice of the Supreme Court. A graduate from Princeton University and Harvard Law School, Ms, Kagan clerked for Justice Thurgood Marshall on the Supreme Court and then worked as an associate of the Washington law firm of Williams and Connolly.
While teaching law school at the University of Chicago she took on another assignment as special counsel to Senator Joe Biden, our distinguished former chairman of this committee. Ms. Kagan assisted in the confirmation hearings of the Supreme Court justice, Ruth Bader Ginsburg.
In 1995 Ms. Kagan served as President Clinton's associate White House counsel, deputy assistant to the president for domestic policy, and deputy director of the Domestic Policy Council. In the White House Counsel's Office she acted as a lawyer for the White House Policy Council in legislative offices analyzing and drafting statutory language and executive actions, and offering policy advice. In the Domestic Policy Council's office she played a role in the Executive Branch formulating advocacy, and implementing of laws and policies on a wide variety of issues.
In 1999 Ms. Kagan left government and began serving as a professor at Harvard Law School teaching administrative law, constitutional law, civil procedures and a seminar on legal issues in the presidency. In 2003 she was appointed to serve as dean of the Harvard Law School, becoming the first woman dean in the school's history. In her five years at Harvard Law School, Dean Kagan has overseen both the academic and nonacademic aspects of the law school. I will enter into the record a letter from the deans of 11 major law schools in support of her nomination.
The solicitor general of the United States holds a unique position in our government as one of the few government positions in which the occupant must be learned in the law pursuant to a statute enacted by Congress. The solicitor general is charged with conducting all litigation on behalf of the United States in the Supreme Court, and is often referred to as "the 10th justice." Indeed, the Supreme Court expects the solicitor general to provide the court with candid advice during all argument, and filing briefs on behalf of the United States. The office participates in about one -- about two-thirds of all the cases that the court decides on their merits each year.
So, it is indeed high praise for Dean Kagan that former solicitor general(s), Walter Dellinger and Ted Olson, joined with six other solicitor generals of both parties, in endorsing her nomination. I will make that record also part of the record. It's very complimentary of our nominee.
At the same time, we expect the solicitor general to exercise independent judgment from the Department of Justice, the attorney general, and even the president of the United States. The Office is charged with vigorously defending statutes duly enacted by Congress against Constitutional challenges. The Office also supervises all lower court appellate litigation and decides whether to appeal decisions that are averse to government and what positions should be taken on the merits of cases.
So, let me thank the two nominees for being willing to continue to serve their country. I also want to thank their families, and we'll have an opportunity for them to introduce their families as the confirmation hearing continues.
And, at this time, let me recognize the Republican leader on our committee, Senator Specter.
SEN. ARLEN SPECTER (R-PA): Thank you, Mr. Chairman.
At the outset may I say that your work on the committee has been outstanding. You've been here a little more than two years. You come as an experienced lawyer and now you're already the chairman of the committee -- (laughter) -- pardon me, acting --
SEN. CARDIN: (Inaudible.)
SEN. SPECTER: -- acting chairman of the committee, which is quite a testimonial to you. But we've worked together closely in the two years and it's nice to work with a lawyer's lawyer, which you are, Senator Cardin.
I join you in welcoming the two nominees. Both present outstanding academic credentials. And in the situation with Dean Kagan, she is now the dean of the Harvard Law School to supplement her outstanding academic work and professional work. The Senate has a broad responsibility under the Constitution, on confirmation, to make enquiries beyond even extraordinary resumes like those presented here today.
In evaluating President Obama's nominees, we see perhaps what is a cautionary word during the campaign when Candidate Obama had this to say about judges. Now, solicitor general is a little different -- substantially different, really, from a judge, as is the position of associate attorney general, but in trying to evaluate approaches it's, I think, fair to look at philosophy. And this is what Candidate Obama had to say, quote, "We need somebody who's got the heart, the empathy to recognize what it's like to be a young teenaged mom; the empathy to understand what it's like to be poor, or African-American, or gay or disabled or old. That's the criteria by which I'm going to be selecting my judges," close quote.
Well, I agree with the need for consideration on the disadvantaged -- no doubt about it, on the categories identified by Candidate Obama. But we also have to make an enquiry as to the commitment to the law, and that nominees (who are in) key positions in the Department of Justice, like judges, follow the law; that if there are to be changes made, it's well established, as a matter of philosophical doctrine, that it's up to the -- up to the legislature to do that.
When Dean Kagan came to see me I asked her about a number of her writings -- and we'll be going into those today. And she made a sharp distinction -- which I understand, as to what a nominee may think about a given situation, contrasted with their advocacy role which she sharply distinguishes and represents that she can be an advocate as solicitor general on issues that she doesn't agree with philosophically.
And while I understand that distinction, and the issue that inevitably arises is how effective -- if somebody is arguing for something which they deeply disagree with. And Dean Kagan is a person who has very deep views. I cite only one in this introduction, and I talked to her about it, and she was discussing the Solomon Amendment on the issue of "Don't Ask/Don't Tell."
And I can understand the challenge to the underlying basis of the Solomon Amendment. But this is what she said: As dean, she reinstated military recruiters to the Harvard Law School, because to do otherwise would have been to forfeit a great deal of federal funding. And she noted that the, quote, "action caused her deep stress" and that she finds the military's policies to be, quote, "a profound wrong, a moral injustice of the first order." Closed quote.
Well, the one consideration would be if you think of something as a moral injustice of the first order, how can you in good conscience be an effective advocate? And this bears on the ability to apply the law. Now, Dean Kagan countered with a statement, well, the solicitor general has the obligation to uphold the constitutionality of the law. There is a strong presumption of constitutionality.
And I commented to her about a case when I was district attorney where the Pennsylvania statute treated women differently than men. They were given indeterminate sentences so if they were convicted of larceny, for example, they went to a woman's prison. And having served the maximum prescribed by statute, five years, they could be kept longer. And when I was asked to defend the statute, I refused and they brought in the state attorney general who defended the statute and the statute was stricken.
So there's a real issue here as to the range of advocacy or perhaps the intensity of advocacy.
So I make those very brief introductory comments, Mr. Chairman, to sort of set the parameters. And we have also the associate attorney general. And we have our responsibility to uphold to make these inquiries under the Constitution to decide whether we should consent and approve the nominations.
Thank you, Mr. Chairman.
SEN. CARDIN: Thank you, Senator Specter.
At this time I'll recognize Senator Jack Reed from Rhode Island for the purpose of introductions.
Senator Reed, it's a pleasure to have you before our committee.
SEN. JACK REED (D-RI): Thank you, Mr. Chairman. And thank you, Ranking Member Specter.
It is an honor to appear here this morning to introduce Dean Elena Kagan. Dean Kagan and I both attended Harvard Law School, but it's obvious she's much younger and a much, much better lawyer. But I have been following her career with great pride since her days not only at Harvard, but as she clerked for Judge Abner Mikva on the U.S. Court of Appeals, the D.C. Circuit and for Justice Thurgood Marshall in the United States Supreme Court -- two giants of America's jurisprudence.
As the chairman indicated, she went on to teach law at the University of Chicago Law School. She served in the Clinton administration and then she returned to Harvard Law School in 1999. And during her tenure as dean of the Harvard Law School, she has drawn acclaim as a pragmatic problem solver who could bridge ideological divides among the faculty and the student body. She hired new professors with diverse areas of expertise and views, and she ushered in a number of far-ranging student-oriented reforms to the law school.
She's also won praise from current and former students who have served our country in uniform for creating an environment that is highly supportive of students who have served in the armed forces of the United States. I know that, because I've met with many of these young men and women who've served and are now students or recent graduates of the Harvard Law School. And they are uniformly praiseful of Dean Kagan.
She is eminently qualified to become solicitor general of the United States. And it's not just her impressive resume and brilliant mind, it's her wisdom and her temperament and her commitment to the Constitution.
In October 2007, Dean Kagan gave a speech at my alma mater, West Point. She was invited there to speak to the cadets. And she told the cadets that our nation is most extraordinary because, as she said, we live in a government of laws, not of men and women.
As a touchstone for her speech, she used a place on the West Point campus called Constitution Corner. This is a place in which the cadets are reminded of their obligations as soldiers. One of the plaques is etched with a phrase, a very simple phrase: Loyalty to the Constitution. That is a watchword for all of us. She understands that it is our duty to the Constitution which is preeminent.
She spoke that day about how our law and our dedication to the law -- the rule of law -- is especially difficult during trying times. She used the example of President Nixon's attorney general, Archibald Cox; and President Bush's attorney general, John Ashcroft, as examples of men who sought to uphold the rule of law in very trying circumstances and put doing the right thing above all else.
If confirmed, I believe General Kagan will be an outstanding solicitor general. She brings exceptional qualifications to the job and will be a tough, fair and powerful advocate for the Constitution and the people of the United States and I commend her to this committee and I thank you all.
SEN. CARDIN: Thank you very much, Senator Reed. I appreciate you being here.
At this time I would ask our witnesses to come forward, if they would, please. If you would stand in order to be sworn in.
(Witnesses sworn in.)
SEN. CARDIN: Thank you.
Well, perhaps the best way to start is first to thank you all for being here and appreciate your families being here. (Laughter.)
And perhaps, at this time, it might be appropriate, if you would, to introduce the members of your family. We've already heard from one, but if we could hear from the rest, it would be -- (laughter) -- so Mr. Perrelli, if you would go first and perhaps introduce the members of the family that are here.
MR. PERRELLI: (Off mike.) I've also got my brother-in-law Kevin, who made the trip from Madison, Wisconsin; I've got Lieutenant -- my extended family -- Lieutenant Matthew Trivett of the Montgomery County Fire Marshal Bomb Squad and Sergeant David Trivett of the Baltimore County homicide unit.
SEN. CARDIN: Thank you.
MS. KAGAN: (Off mike) -- and I left most of mine at home. But I have two wonderful brothers who are here -- (off mike) -- from coming down, but my older brother's daughter, my niece Rachel, is here. She's graduating from college this year. She is looking forward to law school and I think she's going to be a splendid lawyer.
And then I brought a little bit of family from Cambridge, you might say -- some of my great friends from Harvard Law School: Charles Fried, himself a former solicitor general; Jack Goldsmith, John Manning, Dan Meltzer, Martha Minow, and Carol Steiker -- all great friends of mind and I very much appreciate their coming down to support me.
SEN. CARDIN: Well, we welcome your families and we know the sacrifices that they have to make in regards to your public service and we thank them for that.
I want to acknowledge for the record that Senator Webb and Senator Warner wanted to be here to introduce Mr. Perrelli, but they were called upon on other Senate business and we will allow their statements to be made part of the record.
Mr. Perrelli, glad to hear from you.
MR. PERRELLI: Thank you.
Mr. Chairman, Senator Specter, and members of the committee, thank you for giving me the opportunity to appear before you as nominee for the position of the associate attorney general. I am grateful to the president and the attorney general for giving me the opportunity to be considered for this post and to serve again in the Department of Justice, an organization that I revere.
I would like to thank the members of the committee and their staffs who have met with me to start what I hope will be a dialog about the issues facing the country and the Department of Justice. There is deep knowledge in this committee about the many challenges ahead, and I hope that I have the opportunity to work with you to overcome them.
I would like to thank Senators Webb and Warner for the statements of support they have submitted for the record.
I would not be here today without the love of my family and a great deal of good fortune. I want to thank first the love of my life, my wife Kristine for all of her love, help, and support -- especially now with a new baby arriving any day. She is here and you've already met my son, James.
I also want to thank my mother, Nancy Perrelli, who has been an inspiration to me for many reasons, not the least of which is all that I learned from her watching her, as a single parent, work full days, take care of me and my sister, and go to law school at night.
Missing from the large contingent behind me is my father, also Tom Perrelli. He passed away in 2002 after a long struggle with cancer. I think of him today, because my father was one of the career professionals who are the heart of the Department of Justice. He made his career there; and indeed, refused to retire until a day or two before he died, because it was a part of what defined him.
My own reverence for the Department of Justice began through my father. As a college student, I worked summers at the Immigration & Naturalization Service, mainly on IT projects, but I had the opportunity to experience lots of different aspects of the department, including getting to visit the men and women on the border in San Diego to learn the extraordinary challenges that they face and the remarkable job that they do. In my time as a summer intern, I also had the unusual opportunity to talk with then Attorney General Meese, who was kind to several times stop to talk to me when he was exiting the building and I was waiting at the bus stop for a shuttle.
When I completed law school, I clerked for the Honorable Royce Lamberth of the U.S. District Court for the District of Columbia -- himself a lifelong public servant, veteran of the Judge Advocate General's Corps and the U.S. Attorney's Office in D.C. In that job, I saw the best of government lawyers, prosecuting cases from Iran-Contra to drug gangs on the streets of D.C. and defending the United States in cases ranging from the savings and loan crisis to environmental regulation of nuclear power plants.
All of those experiences left me with a deep appreciation for the department, its mission and the extraordinary people who carry it out. That appreciation increased exponentially later in my career when I first served as counsel to the attorney general and later as deputy assistant Attorney General in the Civil Division.
The men and women who serve the department from administration to administration, from law enforcement agents of the FBI, DEA and ATF who put their lives on the line every day to lawyers and staff whose sole goal is fair, evenhanded application of the law and representation of the interests of the United States are remarkable and deserve more praise than they ever receive.
I am honored to have been nominated to serve as associate attorney general and to have the opportunity to work again among the career professionals at the department. But I have no illusions about the size of the task. The challenges that the department faces today are enormous and they derive from its mission which has expanded since September 11th from the constraints on its resources which have limited its ability and from management and other problems that are perhaps self-inflicted.
My vision is a Justice Department of which all Americans can be proud; a department that keeps America safe from threats foreign and domestic; a department that at every level makes the evenhanded application of the law and the representation of the interests of the United States, without regard to party or personal views, a priority; a department that works in partnership with state, local and tribal authorities to most efficiently protect the public and make communities safe; a department that is transparent and gives to the American public confidence that the rule of law and the Constitution are paramount; and a department that works with this committee and others in government to collaborate on the many challenges ahead.
I look forward to answering your questions. Thank you, Mr. Chairman.
SEN. CARDIN: Thank you very much.
MS. KAGAN: Thank you, Mr. Chairman.
Mr. Chairman and members of the committee, I'm deeply honored to be sitting here today. And, of course, I am grateful. I am grateful to the president to nominating me to this important position, I'm grateful to the attorney teneral for supporting me, and to committee -- and to the committee for holding this hearing and considering my nomination. And I'm particularly grateful to the many members on both sides of the aisle who met with me prior to this hearing. I enjoyed those talks and I thank you for them.
I want to say a couple of words about two other people who are not here today with me. I wish my parents could have lived to see this day. My father was a lawyer himself and took great pride in my professional accomplishments. He died about 15 years ago now, but he lived to see me clerk for the Supreme Court and become a professor at the University of Chicago. And he thought all of that was pretty great.
My mother died just last summer, so her absence is particularly difficult for me. She grew up at a time when few women pursued high- powered professional careers, and maybe for that reason she relished my doing so. She would have loved this day.
Both my parents wanted me to succeed in my chosen profession. But more than that, both drilled into me the importance of service and character and integrity. And I pray every day that I live up to those standards.
I hope one other person is looking down on this hearing room today. As you know, I had the privilege of clerking for Justice Thurgood Marshall, the greatest lawyer, I think, of the 20th century.
Justice Marshall had some awfully good jobs in his life, but he always said that the best, bar none, was being solicitor general. Now I'm sure that there are many reasons for that but I've been thinking recently about one in particular. I think he must have been so deeply moved to walk into the most important court in this country when it was deciding its most important cases and to state his name and to say, I represent the United States of America. And I think he would've liked that a former clerk of his would be nominated for the same job and, if confirmed, would be able to say those same most thrilling and most humbling words for a lawyer.
To have the opportunity to lead the Solicitor General's Office is the honor of a lifetime. As you know, this is an office with a long and rich tradition, not only of extraordinary legal skill but also of extraordinary professionalism and integrity. That is due in large measure to the people who have led it.
And I especially want to acknowledge Generals Olson and Clement and Garr for their absolutely superb service during these last eight years. In a time of some difficulty for the Justice Department, they have maintained the highest standards of the office, and they have served their client, the United States of America, exceedingly well.
And, of course, they have been joined in doing so by the career lawyers and the other public servants in the Solicitor General's Office. These men and women have been justly called the finest law firm in the country and they represent the gold standard in federal public service.
The Solicitor General's Office is unusual in our government in owing responsibilities to all three of the coordinate branches in our system of separated powers. And because of this striking feature of the office, the Solicitor General traditionally and rightly has been accorded a large measure of independence. Most obviously, of course, the solicitor general reports to the attorney general and through him to the president and defends the regulations, policies and practices of the executive branch when these are challenged. In this role the solicitor general is the principle advocate of the Executive Branch in the courts of the United States.
At the same time the solicitor general has critical, no less critical responsibilities to Congress, most notably the vigorous defense of the statutes of this country against constitutional attack.
Traditionally outside of a very narrow band of cases involving the separation of powers, the solicitor general has defended any federal statute in support of which any reasonable argument can be made. And I pledge to continue this strong presumption that the Solicitor General's Office will defend each and every statute enacted by this body.
Finally, the Solicitor General's Office has unique obligations to the Supreme Court of the United States. It is frequently said that the Solicitor General serves as the 10th justice; I believe Senator Cardin made reference to that phrase.
Now I suspect that the justices think of the solicitor general more as the 37th clerk. (Scattered laughter.) Regardless, the solicitor general must honor the principle of Starry Decisis, must exercise care in invoking the court's jurisdiction, and most important of all must be scrupulously candid in every representation made to the court. And in this sense I completely agree with what Senator Specter just said, the most important of all the solicitor general's responsibilities is to be true to the rule of law.
Mr. Chairman and members of the committee, it would be an honor to serve as solicitor general. And I commit that if the Senate sees fit to confirm me, I will do everything possible to live up to the great traditions, expectations and responsibilities of the Solicitor General's Office.
Thank you very much.
SEN. CARDIN: Well, thank you. We thank both of you for your opening statements.
We are going to have seven-minute rounds. And let me start and I'm going to try to stick to that time limit for myself.
Mr. Perrelli, let me start, if I might, with the tradition of the Department of Justice over many, many years of being the premiere agency for the people of this country in protecting the rule of law and representing the people of this nation and holding anyone who violates our laws accountable, even if it's the president of the United States.
In the last few years there have been serious problems of partisan politics played within the Department of Justice as it relates to the recruitment and promotion of career attorneys, as it has been in selecting what type of cases to be pursued, overriding the advice of career attorneys, in many cases, for partisan reasons.
I want to get your assessment as the -- if confirmed to be the number three person in the Department of Justice -- as to how you will approach the appointment, retention, recruitment of career attorneys, their assignments and what impact partisan politics will play in regards to those decisions.
MR. PERRELLI: Well, Senator, with respect I think the answer to the last part of your question is none. You've identified an area where the Justice Department has come under criticism, including from its own inspector general, over the last several years in concerns in partisanship in hiring. That is something that, under the laws enacted by Congress, is simply inappropriate. And I think Attorney General Mukasey and Deputy Attorney General Phillip have taken important strides to ensuring that problems of the past are not current problems of the Justice Department. But I think it will be incumbent on the attorney general and others as they are nominated and confirmed to take a serious look at the policies governing the department; to take whatever additional steps that are necessary to ensure that there is no partisanship in hiring or assignment of attorneys.
And I would say that my experience in working with the career professionals at the department is that they are an extraordinary group and that management in the department would be wise to listen to their recommendations, and I hope to have the opportunity to do so.
SEN. CARDIN: That's the answer I expected to hear from you, but let me just caution you. You are responsible for the people that you supervise within the Department of Justice. So we expect that message to be very clear to all the people in Department of Justice as to restoring the confidence that partisan politics will not play a role in the deployment of career personnel.
And I'm pleased to hear you say that but I just want to make sure that becomes a priority and a message that's not -- that's clearly understood at all levels within the Department of Justice.
The second thing I want to raise is the Civil Rights Division. We have been extremely concerned about what has happened in the Civil Rights Division. In the last eight years, the number of significant cases brought have been diminished greatly. The resources made available to that office have been reduced. I want to know what priority you intend to place on the Civil Rights Division within the Department of Justice.
MR. PERRELLI: Well, Senator, the attorney general has already made clear that that will be a significant priority of his. And as the associate, with management responsibility over, among other things, the Civil Rights Division, it will be a significant priority of mine.
I think you identified both the set of concerns about partisanship that have been a subject of a recent inspector general report that was quite disturbing as well as the reality that of all of the civil litigating components in the department, the Civil Rights Division is the one that has actually declined in terms of its resources, even though the number of statutes the enforce and the job that it has to do is, I suspect, greater not less than it was in 2001.
So I think it is a very high priority to focus on the division, to make certain that it is engaged in its mission. It certainly will have in the coming years very, very significant responsibilities following the 2010 census. And the management of the department has to give it special focus to make sure that it's ready.
SEN. CARDIN: Thank you.
Dean Kagan, I very much support your statement of aggressively enforcing the laws of our country, regardless of your personal views, that that's your responsibility if confirmed to be a solicitor general.
I want to talk about the potential conflict between the laws that Congress pass and the claim that the president (has ?) inherent power. This has been an issue that has come up in regards to the FISA statute. It's come up in regards to detainee rights. It's come up in regards to the use of enhanced techniques for interrogation. And I want to know how you will approach the issues when we're talking about fundamental rights and protection of the separation of branches of government. Speaking as a member of the United States Senate, I want to make sure the solicitor general is going to be sensitive to the role that you can play in making sure that the appropriate protections are maintained within our Constitution.
MS. KAGAN: Thank you, Senator Cardin. It's an extremely important question. Every solicitor general nominee who has sat at this table has always, for the past many years, has always said that there are two very rare exceptions where solicitor generals will not defend a statute of the United States. And the one exceedingly rare exception is where there is simply no reasonable basis to do so. And the second is where that statute infringes directly on the powers of the president. And I would say the same thing to you.
I think that there is a category of cases in which statutory defense might be inappropriate because it violates separation-of- powers concerns. But I think that that is an exceedingly narrow category of cases. And here, in thinking about executive power, I would go back to the Youngstown framework that I know so many of you, all of you are familiar with. And of course, that framework says that when Congress authorizes presidential power, presidential power is at its highest. When Congress is silent, we're in a kind of middle ground. And where Congress says no to presidential power, you can deny his presidential power, presidential power is at its lowest ebb.
There are occasional times where presidential power still exists, even if Congress says otherwise. Think about if Congress were to deny any power of pardons on the president. That would be a time where you would say, no, there's a constitutional commitment here. But that category of cases, Senator, I think, is exceedingly narrow, and that's how I would approach the problem that you raise.
SEN. CARDIN: I thank you for that response. I would also hope that there would be some transparency in making those judgments so that there's an opportunity for input and challenge if it's a fundamental issue.
With that, let me recognize Senator Specter.
SEN. ARLEN SPECTER (R-PA): Thank you, Mr. Chairman.
Mr. Perrelli, I sent you a letter on the issue of congressional oversight and told you I'd be asking you about it at the hearing today. And my question to you is whether you agree with what the Congressional Research concluded was the scope of congressional oversight when they say, quote, "DOJ has been consistently obliged to submit to congressional oversight, regardless of whether litigation is pending. Investigating committees were provided with documents respecting open or closed cases that included prosecutorial memoranda, FBI investigative reports prepared during the pendency of cases." Do you agree with Congressional Research statement as to the congressional authority on oversight?
MR. PERRELLI: Senator, the passage that you provided, I agree with respect to the description of the scope of the permissible oversight by Congress that reaches all aspects on which it could legislate. I think that passage does not discuss the countervailing interests of the executive branch in certain circumstances and the process of accommodation that goes back and forth and has historically between the executive branch and the --
SEN. SPECTER: Well, would you supplement your answer by specifying what kind of extenuating circumstances you see to deviate from that standard?
MR. PERRELLI: Well, I think that certainly you have the situation of executive privilege and how --
SEN. SPECTER: I want you to supplement your answer in writing because I've only got seven minutes.
MR. PERRELLI: I will do.
SEN. SPECTER: But you said you would adopt those as a generalization but there might be some extenuating circumstance which would limit it. Please provide that to me in writing.
MR. PERRELLI: Thank you, Senator.
SEN. SPECTER: The Washington Post has an account today on the state secrets doctrine. The Obama administration invoked the state secrets privilege as its predecessor in federal court in opposing the reinstatement of the lawsuit that alleges that Boeing flew people to countries where they were tortured as part of the CIA's extraordinary rendition program. I note in your background you dealt with the state secrets doctrine. Do you think that this is a wise use of the state secrets doctrine as reported in the Post today? (Inaudible.)
MR. PERRELLI: Senator, I think with respect to the question about any particular case, I think it would require me to have more knowledge about particular classified information than might be at issue.
SEN. SPECTER: Well, would you take a look at the case and the statute which Senator Kennedy and I have pending and give us your judgment on that?
MR. PERRELLI: I will, Senator.
SEN. SPECTER: There have been a large number of cases by the Department of Justice in taking monetary fines in the face of gigantic malfeasance. In malfeasance, one case, a company that did about $80 billion a year and they got a $1.7 billion fine. I would appreciate it if you would take a look at those cases with a view to jail sentences for white-collar crime as opposed to fines. Those cases look as if the fines are really license to violate the law as opposed to a criminal sanction which has some real teeth.
One more question before moving over to Dean Kagan. And that is you participated in the Schiavo case and said that congressional action in giving jurisdiction to the federal court -- the matter had been in the state court, and you were an attorney in the case. But you said that when Congress legislated to give jurisdiction to the federal court that the enactment of the federal statute in this case, quote, "is not an exercise of legislative power but trial by legislature, something that exceeds Congress' Article 1 power."
I believe that the law is that Congress has the authority to establish jurisdiction. Do you stand by the assertion which you made in that brief?
MR. PERRELLI: Senator, with respect to that assertion, I think the argument was that Congress cannot, through any vehicle, overturn a prior final court judgment, which those arguments and those concerns were raised going back to the Founding Fathers. That was an issue that no court ever ruled on, so I don't think we know the outcome at this point.
SEN. SPECTER: Well, there is concurrent jurisdiction between the state courts and the federal courts, double jeopardy that a state prosecution doesn't bar the federal government from initiating a prosecution on the same facts. This is an exercise in congressional authority to establish jurisdiction. Why not?
MR. PERRELLI: I think the argument that we made in that case was that what the impact, the effect of Congress' enactment was essentially to attempt to re-litigate issues that had been in the state court.
SEN. SPECTER: Well, that may be the impact. But would you supplement your answer with why you think Congress doesn't have the authority to determine federal jurisdiction?
MR. PERRELLI: I will do that, Senator.
SEN. SPECTER: Dean Kagan, coming to the citation that I had mentioned earlier about how strongly you felt on the Solomon case, you wrote a memo for Justice Marshall in Bowen versus Kendrick, which involved the Adolescent Family Life Act, which authorized federal funds for religious organizations designed to discourage teen pregnancy and provide care to teen -- pregnant teens, and the Supreme Court upheld the statute.
And your memo said, quote, "It would be difficult for any religious organization to participate in such projects without injecting some kind of religious teaching."
Now, I asked you about the Solomon military issue where you had very, very strong moral objections, but you assert that you can function in an advocacy role not withstanding your own personal views. How would you distinguish your confidence that you can do that in light of what you say here -- and I understand why you say it that religious organizations might be inclined to project some of their religious doctrine -- but isn't that an inevitable consequence, even for a skilled advocate who feels very strongly about a matter with respect to the capability to really do the right job in advocacy?
MS. KAGAN: Well Senator, thank you for raising that memo. I first looked at that memo -- thought about that memo -- for the first time in 20 years, I suppose, just a couple of days ago when it was quoted on a blog post. And I looked at it and I thought that is the dumbest thing I've ever heard. So I looked at it and I said --
SEN. SPECTER: You don't have to go any further. (Laughter) What are you -- you're telling us you won't make that same mistake again.
MS. KAGAN: You should never make the same mistake twice.
SEN. SPECTER: I wish I could follow that advice. (Scattered laughter.)
One final question, Mr. Chairman. In a whole series of memos which you sent to Justice Marshall -- and let me join you in extolling the virtues of Justice Marshall -- there was a case called Bowles v. Foles(sp), and this followed a pattern that you had in five other memos, where you express concern over what a majority of the court might do as a reason for denying serve. And this involved an admission. And your memo said, quote, "I think the admission of this statement is outrageous", close quote. And then you express, quote "worry that the court might reach the opposite results so that all ambiguous statements in the future will be construed in favor of the police", close quote.
And you express similar sentiment in five cases which has all the appearance of an overarching philosophy here in deciding what cases to decide. And isn't it really the function to decide whether an injustice has been done when you say it's outrageous, and not to look to a broader public policy concern as to what the court might do as it affects other cases. Where you have a defendant whose constitutional rights are involved, isn't that defendant entitled to have a decision on the merits of his case, without having a decision as to whether the court takes jurisdiction decided on some broad philosophical grounds?
MS. KAGAN: That's a very interesting question Senator. You know, the Supreme Court's jurisdiction is of course discretionary and the Supreme Court does not take every case in which an injustice has been done, even if an injustice had been done in that case, which I'm not sure of. I don't have any recollection of that case, and again haven't thought about it for 20 years.
But let me step back a little if I may, Senator, and talk about my role as a clerk in Justice Marshall's chambers. You know, we produce an enormous amount of paper for Justice Marshall. He was not in what is called the cert pool, so we wrote memos on literally every single case where there was a petition. And that is hundreds and hundreds, and probably thousands, and I'm sure that there were hundreds of criminal cases of which, again, there was a blog post about five of them.
But our view -- I don't want to say that there is nothing of me in these memos. You first asked about Bowen v. Kendrick. And I think that it's actually fair when you look at that memo to think that I was stating an opinion, however wrong it may have been. But I think in large measure these memos were written in the context of you're an assistant for a justice. You're trying to facilitate his work, and to enable him to advance his goals and purposes as a justice. And I think most of what we wrote was in that context.
You know, I was a 27-year-old pipsqueak, and I was working for an 80-year-old giant in the law, and a person who, let us be frank, had very strong jurisprudential and legal views. He knew what he thought about most issues. And for better or for worse, he wasn't really interested in engaging with his clerks on first principles. And he was asking us, in the context of those cert petitions, to channel him and to think about what cases he would want the Court to decide. And in that context I think all of us were right to say here are the cases which the court is likely to do good things with, from your perspective, and here are the ones where they're not. And I think that that's what those five that you mentioned were doing.
SEN. SPECTER: Thank you, Ms. Hagan. Thank you, Mr. Chairman.
SEN. CARDIN: Thank you. Senator Feingold.
SEN. RUSS FEINGOLD (D-WI): Thank you, Mr. Chairman. Dean Kagan, congratulations on your nomination. I was personally delighted when you were appointed, having followed your career, and having really enjoyed working with you on a number of issues.
Although women have made great strides in the legal profession in recent decades, I think the nomination of the first woman solicitor general is obviously a historic moment for our country for the profession. It's no small thing, and I think President Obama should be congratulated for making this nomination as well.
You touched on an issue in your opening statement that I would like to underline. It's important. I think it answers whatever concerns some in the center or on the oddide might have about your personal views or positions you've taken in your career. So I'd like to ask you a question that I asked Ted Olson when he was nominated to be solicitor general.
At the time, the Senate had just passed McCain-Feingold bill, and there was great debate about the bill's constitutionality. Mr. Olson had written the following about 20 years earlier in the Harvard Journal of Law and Public Policy. "The laws that we disagree with, the policies that we do not like, once they are implemented in the law must be enforced by the president and the Justice Department notwithstanding our antipathy toward them. We in the Justice Department must also defend the constitutionality of congressional enactments, whether we like them or not. And in most all cases we are the government's lawyers. So even if we disagree with the policies of the law, and even if we feel that it is of questionable constitutionality, we must enforce it and we must defend it. Do you agree with what Ted Olson wrote?
MS. KAGAN: Absolutely. There is simply no question that when one assumes the solicitor general's role, one is assuming a set of responsibilities, a set of obligations of which the defense of statutes is one of the most critically important. And you defend those statutes whether you would have voted for those statutes or not. And I know that Ted Olson would not have voted for the McCain-Feingold bill, but he and Paul Clement did an extraordinary job of defending that piece of legislation, which I think you'll agree. And that's what a solicitor general does.
SEN. FEINGOLD: I agree with that. And he did do a superb job, and I could have sworn he almost was believing what he was saying (scattered laughter) that he actually was persuaded, because he did a superb job. Now --
MS. KAGAN: For that day he was persuaded, and that's all you need.
SEN. FEINGOLD: Let me ask you, now, about the conflict of interest restriction on those who serve in the solicitor general's office. And somewhat ironic, as I mentioned I was pleased with how the Justice Department, and Mr. Olson in particular, handled their responsibility to defend the McCain-Feingold bill. But since Mr. Olson left the department he has been involved in two cases challenging the statute's constitutionality. I guess he determined that the code of professional responsibilities allows him to do that, but I'm somewhat troubled by it. It seems like he has switched sides and is now representing the clients challenging the very statutes that he defended ably as solicitor general.
President Obama has put in place very tough ethical restrictions concerning post government service of people who work for his administration, going well beyond the revolving door limitations that would otherwise apply. Will you please review the ethical rules and whatever guidance currently exists at the Solicitor General's office, and determine whether more restrictive rules ought to be in place so that you and the lawyers who work for you don't end up on the other side of issues you directly participated in while in government service?
MS. KAGAN: I will, Senator Feingold. To be truthful, this is not a question that I've thought anything about, or know anything about. And in my own case, when I leave the Solicitor General's Office I'm sure I'll go back to academia, where I won't be arguing against -- where I won't be litigating against anything that I've defended. But it's an interesting and important question and I will look into it.
SEN. FEINGOLD: Thank you so much. Mr. Perrilli. I congratulate you as well. You have a truly stellar reputation. And I'm pleased that you've agreed to return to the Department of Justice.
I want to follow up on the state secrets doctrine issue which Senator Specter mentioned. I've been concerned that the state secrets privilege has been invoked by the previous administration to avoid accountability for potential unlawful activities. And courts, of course, tend to be very defferential to these privilege claims, so there's a real opportunity for abuse.
As was mentioned, just yesterday there was a press report that the Department of Justice has told the U.S. Court of Appeals for the 9th Circuit that it will continue to assert the state secret privilege in a case brought by five men who claimed to have been the victims of extraordinary rendition.
The assertion of the privilege will likely cause the case to be dismissed.
In response to press inquires, a DOJ spokesperson said a review of all the cases where the state secrets privilege has been invoked is underway, and quote, "The Justice Department will ensure the privilege is not invoked to hide from the American people information about their government's action that they have a right to know." This administration will be transparent and open, consistent with our national security obligations.
So I'm glad to hear that this review, which I asked Attorney General Holder to do, is underway. I'll follow the issue very closely, and I'm not going to ask you about the Ninth Circuit case here, but will you commit to me that if you are confirmed you will arrange for a classified briefing on this case so I can understand the decision you have made?
MR. PERRELLI: Senator, with respect to the particular case, I think I would need to consult with others at the department about what information is most appropriate to be shared. I will say that my background and experience in this area has let me see these issues from all sides. As a law clerk I worked on Iran Contra and the difficult issues of how you move forward in a criminal case where classified information is throughout the matter. At the Department of Justice, as the head of the Federal Programs Branch it was my job to invoke the state secrets privilege, working with the other intelligence agencies, in court. And so I spent a significant amount of time working through when it's appropriate and not to assert the state secrets privilege.
And in the private sector I've represented a company whose more than billion-dollar claim was held not to be triable because of the state secrets privilege, so I've seen this from all angles and I look forward to being part of that review.
SEN. FEINGOLD: But you will, if confirmed --
MR. PERRELLI: If --
SEN. FEINGOLD: -- give me an answer about whether I'll get a classified briefing on this.
MR. PERRELLI: I will give you an answer, if confirmed, Senator.
SEN. FEINGOLD: And I just want to confirm -- I believe that you've indicated to Senator Specter that you would take a close look at the legislation that he and Senator Kennedy introduced in the last Congress, which was approved by this committee, to give better guidance to the courts on how these claims of state secrets privilege should be handled. Is that right?
MR. PERRELLI: I will, Senator, and I look forward to speaking with the committee about that if I'm confirmed.
SEN. FEINGOLD: There's a lot of suspicion of the government out there, and this is important legislation that the department should be behind. I think it's very important.
Finally, as I understand it, the associate attorney general is responsible primarily for divisions of the Justice Department to deal with civil cases -- Civil Rights Division, Tax Division, Antitrust Division and others -- but each of these divisions has a criminal enforcement section, which you would also supervise. What in your background gives you the experience and knowledge needed to take on these criminal responsibilities?
MR. PERRELLI: Senator, I appreciate the question. In my prior service at the Department of Justice I have served as counsel to the attorney general with a portfolio that essentially followed that of the associate attorney general, so that I had, on her immediate staff, a direct supervisory role with respect to those same civil litigating of each component as well as the criminal aspects of those components, so hate crimes, for example, in the Civil Rights Division, environmental crimes.
So my experience, I think, dovetails particularly well with those aspects of criminal jurisdiction that fall within the associate's role.
SEN. FEINGOLD: Thank you. Thanks, Mr. Chairman.
SEN. CARDIN: Thank you, Senator Feingold. Senator Coburn?
SENATOR TOM COBURN (R-OK): Thank you, and welcome to you both.
Ms. Kagan, one of the things that you said earlier was explaining your role in terms of all three branches of the federal government, and I just kind of have a what if. What if we have a statute that's been previously signed by the executive branch, passed by Congress, and we have an executive order that undermines the statute? In that case, you would have to figure out whether you support the executive order or your support the statute. How would you go about determining that?
MS. KAGAN: That's a very interesting hypothetical question, Senator. I'll say a little bit about a process first, because the first thing that I would do is really to reach out to people within the government, and that means both within the administration but also to Congress to try to figure out what is going on and who requires representation and so forth. So there would be a lot of work to be done to talk to both the people responsible for the EO and the people responsible for the statute.
But I'll give you just a gut instinct, which is that in a case like that, the defense -- the obligation to defend statutes continues on, and that the same narrow two exceptions are the only reasons in which you would not defend a statute, either if there is no reasonable basis in law and it would not appear to me that an EO would call into question the legal basis for a statute, or if the statute impinged on a core element of executive power. And those would be the only two exceptions, both extremely narrow, and my guess is that your hypothetical would not fall within either.
SEN. COBURN: Okay, thank you very much. Of all I've read, the only real criticism that you've had is that you've not been a litigant in the past, and as a physician, you know, I don't send patients to the professors at the university unless they're the expert in the field who have actually practiced rather that just talked, and I wonder how you respond to the criticism of this wonderful resume you have, but yet you have never been a justice and you have never actually been a litigant, and is that going to -- I have no doubt in hearing you that you're up to the task, but how are you going to handle that and how are you going to prepare yourself?
MS. KAGAN: I think it's a very fair and important question. I'm very confident that I'm up to this part of the job, as I am to all the many other parts of the job.
SEN. COBURN: I have no doubt.
MS. KAGAN: And I'll tell you a little bit about why. I think when you get up to that podium at the Supreme Court, the question is much less how many times have you been there before than what do you bring up with you? And I think I bring up some of the right things. I think I bring up a lifetime of learning and study of the law, and particularly of the constitutional and administrative law issues that form the core of the court's docket. I think I bring up some of the communications skills that has made me -- I'm just going to say -- a famously excellent teacher. (Laughter.) I hope I bring up a set of -- I hope I bring up strong legal analytic skills.
It's for you to determine, of course, in the end, but I hope I bring up those kinds of skills. I hope I bring up excellent judgment. I hope I bring up what's maybe most important in addressing the court, which is a kind of candid and direct way of speaking. So all of those things I think are important. And I should say, Senator, that I will by no means be the first solicitor general who has not had extensive or indeed any Supreme Court argument experience. So I'll just give you a few names: Robert Bork, Ken Starr, Charles Fried, Wade McCree. None of those people had appeared before the court prior to becoming solicitor general.
SEN. COBURN: And some of them, the record would show, had some difficulties in their presentations before the courts as well. So I'm not accusing you of that. (Laughter.) Let me --
MS. KAGAN: Now I want to know who you mean.
SEN. COBURN: Well, my staff is going to invite you to come by and visit with me, so we'll have a great conversation on that.
Mr. Perrelli, I have a few questions for you, and I, again, thank you, and I'm here in case your wife needs me.
MR. PERRELLI: Thank you, Senator. I have been heard to say that you are the most important member of this committee to me, at least today.
SEN. COBURN: Mr. Perrelli, the Department of Justice is responsible for enforcing our nation's obscenity and child exploitation laws. The one thing that -- the one thing that I think Attorney General Alberto Gonzales got right was establishing the department's Project Safe Childhood initiative to protect children from online exploitation and abuse. Will you enforce the Child Protection Restoration and Penalties Enhancement Act of 1990, or will you seek to make changes in the way the act is enforced?
MR. PERRELLI: Senator, with respect to that act, I think that it is likely that the responsibility for that will not fall within the associate attorney general's purview, but I can assure you that both in terms of enforcement of the act as well as defense of the act, in the event that it's challenged -- which may well come under the associate attorney general -- that I would seek to enforce the law in the first instance and defend the law if any reasonable argument could be made, as I have in the past when I was the head of the Federal Programs Branch, which defends most of these statutes. We defended the Child Online Protection Act, for example, against a constitutional challenge.
SEN. COBURN: The same would apply for the Children's Internet Protection Act and the Child Protection Obscenity Enforcement Act of '88 -- the same answer?
MR. PERRELLI: To the best of my knowledge those would be most likely to fall under the criminal jurisdiction for enforcement purposes that defense of any act would likely fall under my jurisdiction.
SEN. COBURN: Do you think any of your past experience in terms of those that you've defended or advocated for will affect your abilities to enforce, in a right manner that we would consider right now, those appropriate laws?
MR. PERRELLI: No, I do not, Senator.
SEN. COBURN: Thank you. Last year I participated in legislation targeting combating child exploitation and enhancing the enforcement of child exploitation laws. The Safe Act imposes enhanced criminal penalties for the use of the Internet to violate child pornography or sexual exploitation laws. It also expands the reporting requirements of electronic communication and remote computing services with respect to apparent violations of such abuse and pornography laws. If confirmed, will you have any problem vigorously enforcing such laws as the Safe Act?
MR. PERRELLI: Senator, I think with respect to any enactment of Congress, my role will be to defend that statute if any reasonable argument can be made, and I would be happy certainly to work with the committee on that.
SEN. COBURN: One final question. Do you personally believe that adult obscenity contributes to the sexual exploitation of children in any way?
MR. PERRELLI: Senator, I can't say that I have any recollection of looking at social science at all, but I would say that there is -- we have to do everything we can to protect children from depictions that are going to be harmful to them, and I would certainly work with the committee and take whatever steps are appropriate to do so.
SEN. COBURN: But it's not your view that that in itself, adult obscenity, contributes to child exploitation?
MR. PERRELLI: I have not looked -- with respect to adult obscenity -- and we're talking about unlawful materials -- I think those are criminal and need to be prosecuted. With respect to the impact of them to the extent that they are seen by children, I think it certainly would impact children. I haven't looked at any -- I don't have a view as to whether the existence of those materials viewed only by adults and nothing more -- but it obviously would concern me to the extent that the same adults who are viewing that material are also inclined towards viewing material related to children.
SEN. COBURN: I'll be happy to send you the literature on adult obscenity and child predators.
Thank you, Mr. Chairman. And I would ask unanimous consent. I'm going to have to leave to submit additional questions for the record.
SEN. CARDIN: Without objection. And at this point it might be appropriate, Senator Coburn, to just put into the record the documentation we have in support of Mr. Perrelli from the National Center for Mission and Exploited Children, the Boys and Girls Clubs of America, the National Center for Victims of Crime, the Fraternal Order of Police, the Federal Law Enforcement Officers Association, the National Association of Police Officers, and the Police Executive Research Forum. Without objection they will be made part of the record. Thank you, Senator Coburn.
SENATOR AMY KLOBUCHAR (D-MN): Thank you very much, Mr. Chairman. Congratulations to both of you. Dean Kagan, I noted that when Senator Reid was introducing you he didn't emphasize enough your University of Chicago background. As an alumni I know that it's not always easy to survive there, so I congratulate you on that.
I was going to ask you -- I was reading an article here -- how you managed to get a standing ovation from the Federalist Society at Harvard, but after I listened to your exchange with Senator Coburn, I think I understand why. And as a general matter, I think it's very important that we restore a belief in the law over politics to the Justice Department, and I think your background -- not just your legal experience but clearly your background in reaching out to people of different views -- will be helpful to have that kind of credibility. So I'm just going to ask a more specific question.
You've talked about how you respect so many of the other solicitor generals for their role and how they have upheld the law and argued for the law, even when they didn't personally believe it or -- and very narrow exceptions when it impinges on the president's executive power. But I was wondering if there was anything about the solicitor general's role that you would change. In particular, one of the things I've noticed as a lawyer is the fact that the solicitor general's approval is always needed for the U.S. to take an appeal when the government loses a case but doesn't play a role in a decision when the government wins a case, and I believe it's led to some inconsistency in how some of these appeals have been taken. I wondered if that or some other issues you'd consider of differentiating yourself in the role of the solicitor general.
MS. KAGAN: Well, thank you, Senator. It's an interesting question, and I think I'm going to disappoint you on it a little bit because my basic view of the solicitor general's office is if it ain't broke, don't fix it, and I don't think that this office is at all broke. It's been an extraordinary office for so many years with such dedicated civil servants, incredible lawyers, and then I think that the leadership has been really quite excellent. And I think that some of the practices that you were talking about have grown up because it's so important for the Solicitor General's Office to maintain the credibility, to maintain credibility with the court, and for the court to feel as though the Solicitor General's Office really has an understanding of what its role is and of what it can do.
So, for example, you said the solicitor general only -- you know, decides which appeals to take, and there are many, many times when people in the government do not -- do wish to take a case up to the Supreme Court, where some part of the government, some agency, has lost a case and the solicitor general is very often in the position of saying, no, we're not going to do this; we're not going to take that case up. That's an extremely important thing for the courts to protect its jurisdiction and to make sure that it's not deluged, and for the court really to act as the -- for the solicitor general to act as --
SEN. KLOBUCHAR: And I don't question the solicitor general's role with that at all. I was just wondering, some of the decisions that are made not to become involved in other appeals when the government wins the case.
MS. KAGAN: Well, you can see why when the government wins the case --
SEN. KLOBUCHAR: No, I know, but, I mean, there has just been --
MS. KAGAN: -- one would want to rest there.
SEN. KLOBUCHAR: I understand that. I just meant becoming involved in those cases because we've just seen some inconsistencies over time.
MS. KAGAN: Yes, and it's very interesting. I would love to talk to you about this further and to hear some examples of that.
SEN. KLOBUCHAR: Okay. Thank you.
Mr. Perrelli, I do note that your son seemed to quite down when he was given a BlackBerry. Is that right? (Laughter.) That's what Senator Feingold and I saw, and we were very interested in that. Just like the president, he can't do without his BlackBerry, is that right?
MR. PERRELLI: It is sad but true.
SEN. KLOBUCHAR: Okay.
MR. PERRELLI: I do believe that our children mimic what they see from their parents.
SEN. KLOBUCHAR: All right, good. Well, I was a prosecutor for eight years, running an office of about 400 people, and one of the things that was most troubling to me in just the last few years was what was happening to our U.S. Attorney's Office in Minnesota. It was a gem of an office under Republicans and Democratic presidents. Someone was put in there without the experience to run it, a political appointment, and General Mukasey actually fixed it when he got in and it's now back on track. But it was really shocking to me to see how quickly that office deteriorated and what went on there. And I wanted to say how much I appreciated the decision of the administration to keep on some of the appointees as we wait. I think it would have been a bad idea to suddenly throw out these U.S. attorneys in there now as we try to chart a new course.
So my question is along that line. What would you do with Attorney General Holder to improve morale in the department?
MR. PERRELLI: Well, Senator, I think it is an important question. And the experience of having worked through the transition process I think demonstrated that the experience and talent of the Justice Department remains throughout. There are extraordinary public servants at every level, but there have been concerns, and obviously part of the inspector general's reports, about politicization, and those have affected morale. I think it starts from the top. I think the attorney general and others, including myself if confirmed, need to both speak actively and make clear from the top down about what the mission of the department is, to reenergize that mission and to assure career attorneys that that kind of partisanship that may be of concern to them will not occur again.
And then I think it also is critically important to listen and hear from the divisions and the U.S. attorneys offices what they feel like has been working and what hasn't been working, and do our best to improve those, and I think it will be a -- it's a lengthy process, but there is such a reservoir of experience and talent there that I believe that we can accomplish this.
SEN. KLOBUCHAR: One of the other things that I think is so important is how the Department of Justice works with local county attorneys and local prosecutors across the country. I saw some breakdown of that, and it's always been my view that people don't care who prosecutes a case, whether it's the state's attorney or the U.S. Attorney's Office. Could you talk a little bit about how you would plan the Justice Department to reach out to local prosecutors?
MR. PERRELLI: Certainly, Senator, and it's a critically important question because I think we all have to be pulling the oars together in order to make our communities the most safe that we can, and I think that rebuilding the federal, state, local and tribal relationships is going to be critically important going forward. Certainly I've had law enforcement officials express concern about not having been consulted about issues.
With respect to the role of the associate attorney general, a primary area for the associate is going to be in the grant-making programs, technical assistance and training for state and local authorities, and I also look forward to a robust and, frankly, daily dialogue with state and local authorities about what is working for them, because my prior experience in the government has been if you actually spend some time talking and working with them in the individual communities, you can find the best solutions for the particular problems that you face.
SEN. KLOBUCHAR: And I'm out of time here, but two areas that I hope you'll consider in the future is just white collar crime area, the fraud area, and how difficult it is for local prosecutors and local police to take on some of these cases. And I remember there were always promises of all these labs from the federal government, and it's very difficult for small police departments to take these on, so I think it's something that I hope that you will look at in the future.
MR. PERRELLI: I will, Senator.
SEN. KLOBUCHAR: Thank you.
SEN. CARDIN: Senator Kyl.
SENATOR JON KYL (R-AZ): Thank you, Mr. Chairman. Dean Kagan, I'd like to ask a favor. If you would please read, and then when you're finished give me your thoughts on a law review article written by Rex Lee, one of the preeminent solicitor generals, served under Ronald Reagan. Ohio State Law Journal 1986, in which he describes from his perspective the unique and important role as steward of the Office of SG, that the people who have held that position have, and I'd like to get your take on it. I think it's a very good description of what a good SG should be.
MS. KAGAN: Senator, if I may?
SEN. KYL: Yes.
MS. KAGAN: I was told yesterday -- I suppose one of your staff said that you had an interest in this article, and I did read that article.
SEN. KYL: Well, good. I didn't want to catch you by surprise.
MS. KAGAN: No, it was very fair, but I just want to say I completely agree with you. I think it's a very thoughtful, powerful article about the SG's role. And I might have a quibble here or there, but I basically found myself agreeing with all the main points.
SEN. KYL: For those who haven't, it's a bit of a template for how an SG approaches decision-making about what cases to take and how to proceed, among other things. I would like a discussion with you further. Thank you for that.
I do want to follow up, though, on the point that Senator Coburn was making about the matter of experience. I like to talk to my grandkids about, for example, the difference between intelligence and wisdom to encourage them -- and from my perspective wisdom is a combination of learning, knowledge and experience, which also produces knowledge. And obviously I'm encouraging them to get that learning and to get that experience.
While it's true that you because of your stellar academic background bring a great deal to the court as a litigant, it is also true that there is much to be gained by the experience of participating in a lot of oral arguments before appellate courts. You learn by doing and you learn how to be better than your opponent. You're always facing -- by and large, you're facing -- usually -- an experienced litigator who has practiced before the court on the other side. And there is an advocacy -- an ability that comes not just from academic knowledge but by doing it, and you learn through trial and error what works and what doesn't work.
I suggest that for the position of SG you learn what arguments can be effective and which ones can't -- even what cases you might want to take and not take relative to the possibility of winning it.
What I'm saying is that theoretical knowledge, the academic knowledge, while important and good public speaking, while important, in my view are no substitute for having done litigation which causes you in that arena where you've got to think very quickly and where your past experience can guide you in how to proceed, that as compared to someone without the experience -- someone with just the academic knowledge -- is less suited to the position. Now I appreciate that you have great confidence in your abilities but I would commend to you some degree of humility when you face some very experienced litigator who knows the ins and outs of the argument because he or she has done it a lot of times before.
And I'm not going to get into your background -- the committee is well aware of that background and you've conceded it does not consist of litigation experience -- but respond to -- and I am really concerned about this. I appreciate your academic learning. But -- I mean, I think I'm a fairly smart lawyer trained in the law but I don't think I would be the best candidate for a top con law position in a top law school in the country; that's an analogy I appreciate. But speak to the concern I have please?
MS. KAGAN: I appreciate it. And first, let me -- let me say I completely agree with you on the necessity of wisdom and judgment as opposed to just book learning. I think that this is true for many, many roles in life -- the SG including. And I think one of the things I would hope to bring to the job is not just book learning, not just the study that I've made of constitutional and public law, but of a kind of wisdom and judgment, a kind of understanding of how to separate the truly important from the spurious; or just a kind of situation sense, however you want to describe it.
And, you know, I hope that you'll look at some of the letters that people have written about me because I think in my current job and other places I hope that I've demonstrated that kind of judgment as opposed just to book learning. And I will say to you, Senator, I am in complete sympathy with what you said about humility. And I like to think that one of the good things about me is that I know what I don't know and that I figure out how to learn it when I need to learn it. And this is one of those things where I am going to make a very intensive study of what I might be missing when I come to the job if you see fit to confirm me and to talk to a lot of people within the SG's office and outside the SG's office and to really try to figure out how to fill any gaps that there are.
Now when you think about a job like the SG, frankly anybody has some gaps, you know? One person might not have the litigating experience, another person might not have the deep knowledge of constitutional or statutory law and so forth, but what you have to do is to try to figure out what you don't know.
SEN. KYL: Sure, I appreciate that. The greatest knowledgeable surgeon, though, still has to get those fingers working to do the right kind of sewing. And there's a big difference between a 55- minute lecture and being constantly interrupted by the court to where your wonderful presentation, you know, gets sliced down into about five coherent things that you're able to say -- and practice is what enables you to do that.
Let me just quickly ask you one matter and this relates to the Solomon Amendment that was also discussed earlier. The brief that you signed and was submitted on behalf of the group of law schools, the court itself represented a rather cramped interpretation of the law; it was not very kind to the interpretation in the brief that was submitted. Do you think if you'd been solicitor general when Rumsfeld v. FAIR came to the court that you would've defended the statute and that you would've interpreted it to bar universities from discriminating against military recruiters?
MS. KAGAN: I absolutely would have, Senator, and I'm glad you asked that question because the answer is clear. The 3rd Circuit, of course, held the statute unconstitutional -- that was actually not the ground on which we argued. But the 3rd Circuit held it unconstitutional. There's a clear obligation on the part of the solicitor general to defend the statute in that circumstance unless there's no reasonable basis to argue for the statute.
And I feel comfortable in this case because it's a historic case. Because I know the case, because I know the facts, because I know the litigating posture of the case, I feel comfortable saying, of course there was a reasonable basis; I mean, my gosh, the supreme court ruled 9-0. SO I absolutely would have defended that statute and I would've defended it in exactly the way that Senator Feingold noted Generals Olson and Clement defended the McCain-Feingold law.
SEN. KYL: Again, thank you, and I would appreciate the chance just to visit privately for a little bit.
SEN. CARDIN: Senator Kyl, thank you for your inquiry.
Let me just, if I might, put into the record -- I think it's appropriate at this point -- the letter of endorsement that we received from the solicitor generals from 1985 to 2009 in support of Dean Kagan. The letter states in part, "We are confident that Dean Kagan will bring distinction to the office, continue its highest traditions, be a forceful advocate for the United States before the Supreme Court.
"Elena Kagan will bring to the position of solicitor general a breadth of experience and a history of great accomplishment in the law. We believe that she will excel at the important job of melding the views of various agencies and departments into a coherent position that advances the best interest of the national government. She will be a strong voice for the United States before the Supreme Court. Her brilliant intellect will be respected by the justices and her directness, candor and frank analysis will make her an especially effective advocate." That's from the former solicitor general from 1985 to 2009.
SEN. DIANNE FEINSTEIN (D-CA): Thank you very much, Mr. Chairman, and welcome to the both of you and congratulations and certainly Ms. Kagan as the first woman it is a very special event. So double congratulations.
You mentioned in response to a prior question that if the solicitor general's office isn't broke, your view is don't fix it. But I'd like to give you one instance where I believe it was, and that was in the case of Massachusetts vs. EPA where California and 11 states and a group of nonprofits sued the EPA for failing to regulate greenhouse gas emissions that cause global warming. The solicitor general opposed the suit; he argued that the states could not sue because they could not prove that the EPA's decision affected them in any meaningful way. The Supreme Court disagreed; it found that the emissions could cause sea level and water storage changes that would directly affect the states and their citizens.
So this was one instance where I think a very bad decision was made. Do you believe it was wrong and how would you decide these issues of standing?
MS. KAGAN: Well, Senator, you ask a question that I do think goes to the role of the Solicitor General's Office because in that case the Solicitor General's office was representing the position of the agencies involved. And if it was right or if it was wrong was more a matter of whether the agency had decided the right thing. But I think the solicitor general's role, just as the solicitor general defends statutes to the best of her ability, the solicitor general has to defend executive actions to the best of her ability as well. So if there's a regulation or if there's a policy or a practice that the executive branch had set forward or that any particular agency in it has set forward, the usual thing for the solicitor general to do is to vigorously defend that policy or practice in court.
And without knowing all of the ins and outs of the communications between the solicitor general and the EPA in that case, I suspect that that's the decision that the solicitor general made.
SEN. FEINSTEIN: Yes, well of course, there are many of us. I happen to be one that believed that the EPA was very politicized in the past administration; this is just one example. Essentially what you're saying is, whatever the agencies want the agencies will get in terms of determination of standing -- is that correct?
MS. KAGAN: I think that the presumption is just like the presumption is that the solicitor general's office defends statutes; the presumption is that the solicitor general's office will defend agency actions and agency decisions to the best of its ability.
SEN. FEINSTEIN: Okay. Let me switch topics and ask, are you both familiar with the bill that we spent a great deal of time on in the last session, and that's the Foreign Intelligence Surveillance Act?
MR. PERRELLI: Senator, I'm generally familiar with it.
MS. KAGAN: The same.
SEN. FEINSTEIN: How about you, Ms. Kagan? Well, you mentioned the Jackson formula from Youngstown. And as you know, with the Terrorist Surveillance Program, the president sought to go outside the law, and did, in fact, go outside the law. And that program now is totally under the Foreign Intelligence Surveillance Court.
However, during this period of time, we were reviewing the Foreign Intelligence Surveillance Act and we strengthened dramatically, I believe, the exclusivity sections of those -- of that act. When President Carter signed the act following the Church commission's revelations, he essentially called it the exclusive tool of governance, the collection of foreign intelligence.
Well, the Article 2 authority of the president was used essentially to go around this. We then strengthened it additionally in this latest amended act, which is now law. Have you had an opportunity to review that? And do you believe that the exclusivity provisions are such that they are compelling and therefore the president cannot go around this law and illegally then collect foreign intelligence?
MR. PERRELLI: Senator, I haven't looked at the exclusivity provisions for that precise purpose. I would, echoing Dean Kagan speaking before, certainly in a circumstance where Congress has spoken directly on a subject, whatever authority the president has is at its lowest ebb. So I think that that statement by Congress will be an extremely powerful statement in terms of what the authority of the executive branch is.
SEN. FEINSTEIN: Ms. Kagan?
MS. KAGAN: I can't say anything more than that.
SEN. FEINSTEIN: Okay. Have either of you had an opportunity to review the Geneva Conventions?
MS. KAGAN: Again, generally, Senator.
SEN. FEINSTEIN: With respect to the laws of war, which essentially cover the detention of an enemy combatant for the duration of the conflict?
MR. PERRELLI: Senator, I've had occasion to review that in the context of reviewing the Supreme Court's decisions in that area to date.
SEN. FEINSTEIN: Well, let me ask you this question, then. Do you believe they are sufficient to detain an individual who is found to be an enemy combatant until the end of the conflict?
MR. PERRELLI: Senator, I think I would want to consult further with experts in the field. The description from your question sounds similar to, at least in part, to Supreme Court's decision in the Hamdi case. I'm not certain of all the potential exceptions or nuances to that, but certainly that was in part what a majority of the court held in that case. That's the best of my recollection.
SEN. FEINSTEIN: The reason I raise this is because I think it's going to be a fundamental question as we consider the end planning for detainees as Guantanamo is closed, because the question arises, what do you do with people who might not be able to be tried but are adjudged through a proper due process panel to be of danger to the national security of this country and/or enemy combatants? Can they continue to be held without trial? And it's my understanding that the laws of war do permit this. Now, this is an asymmetric war and it's apt to go on for a substantial period of time. But I was just curious whether you had a view on that. Clearly you don't.
MR. PERRELLI: Well, Senator, I think, as I indicated, my understanding is that that is indeed what the Hamdi case held. And certainly I think the president has made clear, in considering the outcome of the Guantanamo review, keeping the country safe is his first priority.
SEN. FEINSTEIN: Thank you.
Thank you, Mr. Chairman.
SEN. CARDIN: Thank you.
SEN. LINDSEY GRAHAM (R-SC): To pick up where Senator Feinstein left off, which is an excellent question -- and this country needs to discuss this openly and, quite frankly, somewhat behind closed doors. Dean Kagan, do you agree with me that under normal criminal law, there is no process to hold someone indefinitely without trial, under domestic criminal law?
MS. KAGAN: Under normal criminal law? Yes, I do agree with you.
SEN. GRAHAM: And if you had a criminal statute that would allow someone to be held forever without trial, it would no longer be criminal law; it'd be something else.
MS. KAGAN: That seems right, Senator.
SEN. GRAHAM: Okay. Now, if one's at war -- let me ask this. Do you believe we're at war?
MS. KAGAN: I do, Senator.
SEN. GRAHAM: Okay, let me read from Mr. Holder. Would you consider him your boss?
MS. KAGAN: (Laughs.) In a manner of speaking, Senator. I guess he can fire me, so that makes him my boss.
SEN. GRAHAM: Okay. Well, that would make him your boss. But it seems to be -- I think he'd be a good boss.
MS. KAGAN: I think so too.
SEN. GRAHAM: And I think you'd be very qualified for your job. I asked him, "Do you think we're at war?" And he says, "I don't think there's any question but that we're at war. I think, to be honest, I think our nation didn't realize that we're at war when, in fact, we were. When I look back at the '90s and the Tanzania, the embassy bombings, the bombings of the Cole, I think we as a nation should have realized that at that point we were at war. We should not have waited until September 11th, 2001 to make that determination."
Do you agree with that?
MS. KAGAN: It's easy to agree with my boss in that circumstance.
SEN. GRAHAM: Okay. I asked him where the battlefield might be. If we're at war, I asked him where would the battlefield be. And he gave what I thought was -- I said, "If you try to explain to a civics class, a ninth grade civics class, about the battlefield in this war, what would it be?"
And he said, "The battlefield -- there are physical battlefields certainly in Afghanistan, but there are battlefields potentially (now ?) in our nation. There are cyber battlefields that we're going to have to engage. There's also -- and this sounds a little trite, but I think it's real -- there's a battlefield, if you want to call it that, with regard to the hearts and minds of the people in the Islamic world. We have to do things in a way -- to conduct ourselves in a way that we can win that battle as well so that people who might otherwise be well-intentioned do not end up on the wrong side and against us."
Do you agree with that?
MS. KAGAN: (Off mike.)
SEN. GRAHAM: Well, I certainly do too. And I told him I thought what he was speaking of was the moral high ground. There's a physical high ground in traditional war, but in this war there's the moral high ground, and we have to maintain that moral high ground. I think at times we've lost it. But we also have to remember we're at war.
Now, I asked him this question. "Now, when you talk about the physical battlefield, if our intelligence agencies should capture someone in the Philippines that is suspected of financing al Qaeda worldwide, would you consider that person part of the battlefield, even though in the Philippines, if they were involved in al Qaeda activity?" Holder said -- the attorney general said, "Yes, I would."
Do you agree with that?
MS. KAGAN: I do.
SEN. GRAHAM: So that gets us back to Senator Feinstein's question. Under the law of armed conflict, as I understand it, under the Geneva Convention, Article 5 says if there's a dispute about status, what you're entitled to is an independent, mutual decision- maker. And in most wars, that can be a battlefield determination by a single officer. But because this is a war without end, that will not end with a ceremony on the USS Missouri -- there'll be no defined end -- I am all for giving more due process.
But the point she's making, I think, is an important point. You cannot detain someone indefinitely under criminal law. They have to have a trial. But under military law, if you're part of the enemy force, there is no requirement to let them go and go back to the war and kill your own troops. Do you agree that makes sense?
MS. KAGAN: I think it makes sense, and I think you're correct that that is the law.
SEN. GRAHAM: So America needs to get ready for this proposition that some people are going to be detained as enemy combatants, not criminals, and there will be a process to determine whether or not they should be let go based on the view that we're at war, and it would be foolish to release somebody from captivity that's a committed warrior to our nation's destruction.
Now, the point we have to make with the world, would you agree, Dean Kagan, is that the determination that led to the fact that you're an enemy combatant has to be transparent?
MS. KAGAN: It does, indeed.
SEN. GRAHAM: It has to have substantial due process.
MS. KAGAN: It does, indeed.
SEN. GRAHAM: And it should have an independent judiciary involved in making that decision beyond the executive branch. Do you agree with that?
MS. KAGAN: Absolutely.
SEN. GRAHAM: So we can go tell the world that this person is being held off the battlefield not because one person says so but because there's a process that led to that determination where you had an independent judiciary involved. Do you think that's important for the nation to make sure we have that kind of process?
MS. KAGAN: I do, Senator.
SEN. GRAHAM: I look forward to working with you and this new administration how to come up with a process that will make that statement, to let the world know that no one's being arbitrarily held based on just suspicion or emotion, but based on evidence and a legal process, and some of these people are going to be held maybe for the rest of their life, but it will be based on our values, not theirs.
And my message to those who are on the fence, don't join al Qaeda. Not only does it corrupt your own life and your own religion, if you happen to be a Muslim; you could wind up getting killed or dying in jail.
Now, Mr. Perrelli, one of the things that I've been working on in the past administration with not a whole lot of success is trying to protect our intellectual property. I come from a manufacturing state. There's some people on this committee who come from manufacturing states. And one of the edges that America has is the ability to innovate. But that innovation is routinely stolen in places like China and Russia and other places. Do you believe we have sufficient laws on the books to protect intellectual property in a global economy from regimes like China and other places in the world that are less than respectful? And if not, what could we do better?
MR. PERRELLI: Well, I think, Senator, simply by identifying the problem, whatever mechanisms and laws we have in place currently don't seem to be addressing the problem because, as you indicate, there are significant concerns and problems in a number of foreign countries with respect to theft of intellectual property.
I think through the transition process, I heard from members of both chambers about the need to ensure that there is an intellectual property task force that is focused on these issues or at least point people who are focused on this. I know that this committee was one of the sources of the bill that created a broader intellectual property position throughout the administration, and hopefully we'll be able to focus on these issues.
SEN. GRAHAM: Well, thank you, both. I think you are excellent choices, and you'll do a good job for the country. And I look forward to supporting you.
MS. KAGAN: Thank you, Senator.
MR. PERRELLI: Thank you, Senator.
SEN. CARDIN: Thank you.
SEN. SHELDON WHITEHOUSE (D-RI): Thank you. Just to follow up on Senator Graham's question, we passed legislation very recently that would set up an intellectual property czar in the White House, that would empower the department to put together task forces on this and, obviously, implementation is yet to be accomplished. But we very much hope that that will be a priority for you because I couldn't agree more with Senator Graham's concern about that.
I want to first recognize and appreciate Solicitor General Fried is here, who has done such great service to Harvard, the Commonwealth of Massachusetts and the country. And I'm delighted to see the former OLC Chief Jack Goldsmith also here, who shared such an important window into a truly extraordinary moment in the Department of Justice's history.
My question for both of you has to do with the department itself as an institution. It has probably had its bleakest period. You will be the first new administration to inherit that and try to rebuild it. I understand from your prepared testimony that you understand that and are well positioned for that.
Mr. Perrelli, you talked about your father's long and distinguished work for the Department of Justice and described your reverence, was the word you used, for the department.
Dean Kagan, you talked about your clerkship for Justice Marshall and his pride in having served as solicitor general and what you called the thrilling and humbling words, "I represent the United States of America." I think those pieces of testimony put you in exactly the right place.
But I want to hear each of your assurances that in all of your tasks, your first priority will be to defend the Department of Justice as an institution upon which Americans can rely for competence, for honesty and for integrity.
MR. PERRELLI: I certainly can make that assurance, Senator.
MS. KAGAN: Senator, I can as well. And one of the glories of the Solicitor General's Office is that even in some very difficult times for the Justice Department, it has maintained its professionalism and its integrity and its refusal to be politicized.
SEN. WHITEHOUSE: It has distinguished itself in that regard. We've heard disturbing testimony about the disassembly of traditional civil service safeguards that for a long time have protected the department and its career staffs from political influence. We've heard of applicants being asked, as a measure of their qualification, why they want to serve George Bush. We've had them asked about their political background. We've had people who had associations that were deemed consistent with Democratic or progressive or liberal views knocked out of consideration for career positions.
And the danger of all of that is that, as a result, people whose first priority is to a party and to an ideology have been allowed to infiltrate the department, and they will not, did not intend to and now will not, follow the traditions of independence, competence and integrity that the department has long stood for. But they're in now.
And although, in many respects, they don't deserve it because they didn't come in through a civil service proper process, they now enjoy the benefits of that civil service process. Now, some people who came in, I'm sure, are as qualified as anybody else and as excited about being in the department as anybody else and as keen to do the right thing as anybody else, just the way that, I think, pretty much everybody who comes to the Department of Justice for the first time has that feeling.
But to the extent that there are people who have essentially infiltrated themselves to be moles for a particular party or advocates for a particular ideology, what mechanisms do you have in place to protect the department and people who count on their judgment in particular cases to be protected against that?
MR. PERRELLI: Well, Senator, I think it is an important question. And I think there's no question on a forward-looking basis that we have to do everything possible to ensure that never again are partisan criteria used in the selection of career attorneys or staff in any way, and that includes promotion decisions as well as decisions about hiring.
And I think that having served in the department, you understand the incredible power of standing up and saying you represent the United States and the extraordinarily high standards to which we need to measure attorneys at the Department of Justice.
My view is that we need to make sure that everyone who is working at the department is one with the mission and that, to the extent that there are those whose first priority may be to something other than the mission of the Department of Justice, we will learn about that because their performance will demonstrate to us that they are working on something else or focused on something else rather than the needs and interests of the United States.
SEN. WHITEHOUSE: So you are completely confident that the existing performance evaluation and review process at the department is adequate to the task of defending it against people who may have infiltrated it for partisan purposes?
MR. PERRELLI: I can't say that I'm completely confident. It's something I would want to look at, if I'm confirmed, with the attorney general and others. But I think my view is that going forward we need to evaluate people based on their performance and their performance with respect to the mission of the department. Because in the past, to the extent that other criteria have crept in, that's why we have a problem.
SEN. WHITEHOUSE: Well, I certainly hope that that's the case. And I'm prepared to accept that it may be the case. But I'm not convinced yet. And from my point of view just want to register that as a remaining open question. But I'm delighted that you both are candidates for these offices. I look forward to working with you and appreciate very much that you have taken this step to serve in these positions. The hassle and the criticism and the hours and the pay are all somewhat different than what you've experienced at different times in your past. But there's nothing quite like the responsibility and the honor, so I wish you well.
MS. KAGAN: Thank you, Senator.
MR. PERRELLI: Thank you, Senator.
SEN. CARDIN: Senator Hatch.
SEN. ORRIN HATCH (R-UT): Well, thank you, Mr. Chairman.
I welcome both of you to the committee. I have great respect for both of you and appreciate the fact that you're willing to give your time to public service. It means a lot to me. You both have excellent academic credentials.
Dean, you've done a terrific job up there at Harvard.
MS. KAGAN: Thank you.
SEN. HATCH: No question about it. And I think it's evident by a number of the professors who are here today, a number of whom I consider close friends and who have weighed in in your favor from time to time with me. And I really appreciate it.
You're both excellent lawyers. You're both excellent scholars.
Let me just raise a case with you, Dean Kagan, that I raised with David Ogden last week, and that is the child pornography case titled Knox versus United States. Now, this is important not only because protecting children is one of the highest matters of importance but because of the attempt to weaken enforcement of the child pornography statute.
That was first made by the solicitor general in his brief to the Supreme Court a while back. Suddenly, the solicitor general asked that a different definition of child pornography be used and the conviction in that case be reconsidered. You said in your opening statement that the solicitor general must defend, quote, "any federal statute -- (inaudible) -- that can be made," unquote.
In my opinion, the solicitor general at that time failed in this duty in the Knox case where something as important as the protection of children was involved. And that is what the new solicitor general in the last incoming Democratic administration did.
Now, I do not want a solicitor general who will use that office to change the law through the courts. Neither the solicitor general nor the courts make the law; Congress does.
And I know you write in the area of First Amendment law and about legislative efforts to restrict obscenity and pornography.
Now, do you have any comment on the Knox case, and how will you keep that sort of thing from happening on your watch?
MS. KAGAN: Senator, I don't know the case, and I'm not sure I understand which solicitor general did what, when.
SEN. HATCH: Well, the first solicitor general in President Clinton's tenure.
MS. KAGAN: I see. And then -- but then it was defended later?
SEN. HATCH: Yeah, it was. Well, actually, it turned out, I think, all right in the end, but that was the (argument ?).
MS. KAGAN: Well, either way, Senator, I would have no difficulty in this area whatsoever. I mean, I would have no difficulty in any area defending a statute, and I can't imagine why one would have any in this area.
SEN. HATCH: Well, in your book -- in your review of Professor Stephen Carter's book on the confirmation process you wrote that the Senate should ask judicial nominees about their views on Constitutional issues, the direction they would take the court, and even about votes that they would cast. I'd like --
MS. KAGAN: The -- ?
SEN. HATCH: -- even about votes they would cast. How do you square this with the principle that judges must be impartial, and with the oath they take to provide justice without respect to persons?
MS. KAGAN: It's a great question, Senator. And I'm not sure that, sitting here today, I would agree with that statement. I wrote that piece -- after I had worked on this committee I had the privilege --
SEN. HATCH: (If you) want to know the truth, I remember when Judge Bork was here, he had written some outlandish things from time to time but he was absolutely brilliant. And he did it more as an academic, as a teacher. And some on this committee held that against him very badly. But the fact of the matter is is that I don't -- I think it's good for teachers to raise all kinds of issues on all sides of cases.
MS. KAGAN: Right, right.
SEN. HATCH: And you're good at that.
MS. KAGAN: (Laughs.) Well, thank you, Senator.
I was just going to say, you know, I wrote that when I was in the position of sitting where the staff is now sitting, and feeling a little bit frustrated that I really wasn't understanding completely what the judicial nominee in front of me meant and what she thought.
But, I think that you're exactly right, of course, that there are other -- that this has to be a balance. The Senate has to get the information that it needs but, as well, the nominee, for any particular position -- whether it's judicial or otherwise, has to be protective of certain kinds of interests, and you named the countervailing ones.
SEN. HATCH: Let me just say that I may not agree that Thurgood Marshall was the greatest attorney of the last century, but I agree (that) he was one of the greatest. And I have nothing but respect for what he did for the civil rights community, and the courage that he had in doing that.
And so I think -- I'd just commend you for having had the privilege of working with him and others on the Supreme Court who were giants at that time when you were there. So, I think you've had some tremendous experiences in your life and, naturally, I respect that.
Now, Mr. Perrelli, I don't want to ignore you.
MR. PERRELLI: (Laughs.)
SEN. HATCH: If you are confirmed to be associate attorney general you will oversee the Justice Department's Civil Rights Division. In the last several years the Division has launched some important initiatives which reflect a more comprehensive vision of civil rights, and I want to know if you intend to continue these programs and priorities.
Let me give you an illustration. One of these is the protection of religious liberty. Now, I take a tremendous interest in that. And, naturally, as a member of the Church of Jesus Christ of Latter Day Saints -- the only against whom an extermination order was issued by a governor of a state, I naturally have a great deal of concern. But, not just for my faith, but for people of all faiths.
You know, it's the first liberty mentioned in the First Amendment to the Constitution. Now, the Division right now has a special counsel for religious discrimination to handle these cases. It has also developed a strong program for enforcing the Religious Land Use and Institutionalized Persons Act, which I introduced and it was passed unanimously by the Senate and the House. I think it's a very important bill.
Now, what priority will the Civil Rights Division, under your leadership, give to the protection of religious liberty, and will you maintain the position of a special counsel? And I would like your view on how this will fit into your approach to civil rights.
MR. PERRELLI: Well, Senator, it's an important question. And I agree with you that we need to continue the efforts of the Civil Rights Division in protecting religious freedom. As I indicated previously, one of my concerns is that the number of statutes that the Civil Rights Division enforcing has only increased while its staffing has actually been declining over time.
With respect to the particular position that you referenced, I think I would want to talk to the incoming assistant attorney general for Civil Rights, at such time when he or she is nominated and confirmed, about the right approach here. But I agree, fundamentally, that work on the RLUIPA -- which I worked on when I was at the Department of Justice in the drafting phases, and in cooperation with this committee -- is an extremely important statute and we need to continue significant enforcement efforts with respect to it.
SEN. HATCH: Well, thank you. I want to -- I want to express my regard for both of you. And I've really enjoyed listening to your comments here today. I think you both (are) very, very top-flight people with top-flight abilities.
And I appreciate your willingness to serve here in Washington. It's not as much fun as Harvard, I got to tell you, but -- (laughter) -- in fact, it gets pretty miserable at times.
MR. PERRELLI: (Laughs.)
SEN. HATCH: But, glad to have you here and glad you're willing to serve.
MS. KAGAN: Thank you, Senator.
MR. PERRELLI: Thank you, Senator.
SEN. CARDIN: Thank you, Senator Hatch.
SEN. WYDEN: Thank you, Mr. Chairman.
I want to welcome both of our witnesses as well. I know we have votes, and both Mr. Kaufman -- Senator Kaufman and I are going to try and get our five minutes in, and we'll try and do it quickly.
Mr. Perrelli, let me start with you on the white-collar crime issue. I think we all understand that hundreds of billions of dollars is going out to the financial sector at this time, and we have seen this enormous spree of rip-offs -- investment schemes, and frauds, and the like. You've looked at what your predecessors in the Bush administration have done in the financial fraud area, what will you do, specifically, to change the Bush policy and beef-up the fight against white-collar fraud?
MR. PERRELLI: Well, Senator, I appreciate the question. And I agree that as we -- particularly in the current phase of the economy that we're in, we need to be extraordinarily vigilant, both on the civil and criminal side, in enforcing the law against those who would defraud consumers, as well as defraud the government.
As the associate attorney general, most of the jurisdiction of the components that I would supervise, if confirmed, is focused on the civil side -- civil enforcement. But there is criminal jurisdiction, for example, over scammers that come out of the FTC, and those are enforced by the Civil Division.
Through the transition process I think we talked a lot about the need for enhanced FBI -- additional FBI agents to focus on white- collar crime because, over the last several years, the FBI has really had to transform itself into a national security agency. We've also talked about the need for additional U.S. attorneys, and working with (assistant ?) United States attorneys in the field figuring out whether a centralized task force, or a more dispersed approach, is appropriate.
But, I certainly think that we will need to focus on fraud, both against consumers -- mortgage fraud, and fraud against the government, particularly with large sums of money flowing to the private sector. Those are going to need to be extraordinarily important priorities for this --
SEN. WYDEN: You've told me that you'd look at putting more agents on it, and more U.S. attorneys. I want to hold the record open on this point, because I want to know specifically what you would do to beef-up the fight against white-collar crime, relative to what was done in the Bush administration. You can get back to us quickly on that?
MR. PERRELLI: I can, Senator.
SEN. WYDEN: Very good.
Second point for you, you represented the Recording Industry Association, and there there was an aggressive effort to pursue individuals who share music files. Now, clearly the Department of Justice has got to set some priorities, and, given the need to set priorities, do you believe that government prosecutors ought to devote time to pursuing individuals accused of these illegal downloads if we're talking about, say, a small number of music files?
MR. PERRELLI: Senator, with respect to the enforcement of the criminal copyright laws, that, again, would likely fall within the Criminal Division so it would not necessarily fall under the purview of the associate attorney general.
I would say that, to date, I think the career prosecutors of the Criminal Division have never yet concluded that it was an appropriate use of their resources to pursue such actions.
SEN. WYDEN: And you would support that?
MR. PERRELLI: I'd have not reason to disagree with it.
SEN. WYDEN: Okay.
One question for you, Ms. Kagan -- and I share Senator Hatch's views about your qualifications and we're looking forward to your confirmation. I want to ask you about the unusual case of Ali Al- Marri, the legal resident of the United States who's been held at the military brig in Charleston for the past several years. He's currently the only U.S. person being held in prison in the United States on the grounds that he was declared an enemy-combatant.
And I want to go at this issue in a careful way because it is certainly a possibility that you may have to argue the case. So, let us kind of set aside that. And what I'd like is just a little bit of your thinking -- without it just being 35,000 feet, about the kind of legal principles and the legal analysis that you might bring to cases like this without getting you into the area that you might one day have to argue.
So, don't be so general you just take me to 35,000 feet and I don't get a sense of your thinking, and, at the same time, I want to be respectful of the fact that you may one day be arguing it. I'm just trying to get a sense of how you think about these kinds of cases.
MS. KAGAN: Senator, I appreciate the question but I have this urge, actually, to stay up at 50,000 feet --
SEN. WYDEN: I got the drift. (Laughter.)
MS. KAGAN: -- for the reasons that you say -- you know, the president has authorized a review of this case, and all the various ways of dealing with it, and that review is ongoing. I don't know really anything because, you know, I'm only a nominee and I have no sense of how it's proceeding or how this might get to the court, whether it would get to the court; if it got to the court, what the arguments would be.
And I just feel as though I don't want to step into that area. This is, you know, very much an ongoing case, and also an ongoing exploration in the Justice Department of how to deal with it.
SEN. WYDEN: Well, tell me, then, about the balance -- the Constitutional balance, as you would think about it. I mean, what our country's always been about is protecting the "public good," and, (in) this case, fighting terrorism ferociously, and at the same time being sensitive to individual liberty. Talk to me about how you approach the balance.
MS. KAGAN: Fighting terrorism ferociously and also fighting terrorism within the rule of law. And those are the two things that you have to make sure happen at one and the same time.
SEN. WYDEN: Thank you, Mr. Chairman.
SEN. CARDIN: Senator Kaufman.
SEN. KAUFMAN: Thank you, Mr. Chairman.
Dean Kagan, Mr. Perrelli, I'm really pleased that you're taking on these new assignments.
Although, Dean Kagan, what I find that -- when we were working for Chairman Biden we got to question a lot earlier, and frankly what's -- most of the questions that I had have already been asked and I don't see any reason to repeat them.
I especially want to associate myself with Senator Whitehouse's remarks about the Justice Department and what's happened in recent years -- not to look back, I agree with President Obama, we should be looking forward, but clearly there were some things (that) went on there -- disturbing, in terms of keeping career people, and in terms of the kind of people that are presently there, and in terms of recruiting people.
I think you're going to have some excellent recruits for the Justice Department, and it's a challenge you have to meet. And, Dean Kagan, I'm glad to hear that you feel the solicitor general's office is in good shape in this regard.
But that's -- mostly I want (to) just thank you for -- we have a vote coming up, I just want to thank you for serving. I think you're going to -- as Senator Whitehouse said, have an incredible experience in the Justice Department.
I think that what -- (inaudible) -- we do in the Justice Department, as Senator Wyden said, are extremely difficult questions. No one wants to make these questions any simpler, and I think, Dean Kagan, the question he asked you, and the fact that the Justice Department is looking into this, and trying to determine, is really going to be a key thing.
So, I want to thank you very much for coming here today. Thank you for serving. And I think you're excellent selections, and I wish you all good luck.
MR. PERRELLI: Thank you, Senator.
SEN. CARDIN: Thank you, Senator Kaufman.
Let me just echo what Senator Kaufman has just said, and thank both of you for (being) willing to serve our country. These are very important positions, and, as Senator Whitehouse said, it's going to be long days. Your family are going to make continued sacrifices, and we thank them for being willing to share your talent with our country.
The hearing will -- a record will remain open for one week in order for members to submit questions in writing. I would urge you all to please respond to those questions as quickly as possible so that we can complete the process that we need to go through to make recommendations to the floor in regards to confirmation.
Chairman Leahy apologizes for not personally being here today. Other business kept him away from the committee. And, without objection, his statement will be made part of the record.
And, once again, I thank you all for your courtesies today. And, with that, the committee will stand adjourned. (Sounds gavel.)