Solicitor General Kagan, I join my colleagues in welcoming you here this morning.
With the passing of Senator Byrd earlier today, I was reminded of our hearings for Judge Bork and Senator Byrd's participation in those hearings, and a candid shot of him taken one Saturday when we had an hour -- a Saturday morning session with Judge Bork, and his picture appeared on the front page of the Sunday New York Times, and he will be with us in these hearings and in much of our thinking on the interpretation of the Constitution.
This hearing presents a unique opportunity, perhaps, to have questions answered which have not been answered in the past. The article which you authored for the Chicago Law Review back in 1995 is openly and specifically critical of Justice Ginsburg, Justice Breyer, who, as you characterize it, stonewalled. You criticized the Judiciary Committee, and I think properly so, as lacking seriousness and substance in our approach to the hearings. And you use the phrase that the confirmation process "takes on an air of vacuity and farce."
You quote Senator Biden, then chairman, and myself expressing concerns that one day the committee would, quote, "rear up on its hind legs" and reject a nominee who refused to answer questions for that reason alone. So this is a unique hearing in that respect.
The court, regrettably, I think, has become an ideological battleground. And the activism is on both sides. As a prosecutor in the 1960s, I watched the Constitution change virtually daily: search and seizure, Mapp, 1961; right to counsel, Gideon v. Wainwright, 1963; Miranda, 1966, activism.
We have the Supreme Court now having adopted a test of determining constitutionality, since 1996, on congruence and proportionality, an impossible standard, except, as Justice Scalia described it as a "flabby test" which enables "judicial legislation."
We've had nominations who sat where you sit, not too long ago, who said they would not jolt the system; modesty; and then (inaudible) jolts (ph) to the system; assured this panel that the legislative finding of facts is not a judicial function, and then turned that on its head in Citizens United on a record that is 100,000 pages long, and finding that there's no basis for a 100-year-old precedent, which was overturned, certainly a jolt to the system.
When Senator Biden was considering the nomination of Chief Justice Roberts, he said that he was qualified but would vote against him because, as then Senator Obama said, quote, "overarching political philosophy," close quote.
Well, the presidents make their selections based on ideology. I think that's a blunt fact of life, and the deference that I had considered in earlier -- my earlier days in the Senate, I have come to the conclusion the senators have the same standing to make a determination on -- on ideology.
It has become accepted that there should not be transgression into the area of judicial independence on how a case would be decided.
There's an interesting case captioned "Minnesota v. White," a Justice Scalia opinion in 2002, which struck down a requirement of the Minnesota Bar Association, which prohibited judges from saying how they would decide cases. The Supreme Court said that was an infringement on first amendment rights of freedom of speech.
Now, that doesn't say that a judge should answer the question, but it does say that a bar association rule prohibiting answering the question is invalid, which leaves the judge, at least so far as that standard is concerned, with a latitude to answer the question, so that even on the ultimate question of how a case will be decided -- and in your law review article, you come very close to that when you talk about answering substantive legal issues, really right on the line of how you would decide a case.
But if we are precluded from asking how decisions would be -- what decision would be made on grounds of judicial independence and the precedent on that, I do think it is fair for us to ask whether the Supreme Court would -- would take a case.
The Congress has the authority to direct the Supreme Court on cases which must be heard, flag burning case, McCain-Feingold and many, many others, so that the court's discretion is limited there if there is a congressional direction.
I think it is fair, from that proposition, to ask a nominees whether they would -- would take cases. I spoke at length on the floor about what I consider the inappropriate decline of a number of cases considered.
One hundred years ago, or a little more, in 1886, the Supreme Court decided 146 cases, 146 opinions; a little more than 20 years ago, in 1987, 146 opinions; last year, last term, 78 arguments, 75 opinions. A lot of circuit splits, important cases are not taken up by the Supreme Court.
The Supreme Court declined to hear the conflict which arguably is the most serious clash between Congress's Article I powers under the Foreign Intelligence Surveillance Act, which sets the exclusive means for getting a warrant, listening to a wiretap, probable cause, and the president's warrantless wiretap program justified under Article II.
A Detroit federal judge said it was unconstitutional. The Sixth Circuit ducked it with a standing decision, 2-1, with admittedly the dissenting opinion much stronger; application for cert denied. And this was something I discussed with you in our meeting, which I thank you.
I sent you a series of letters on issues which I intend to ask you about, and that was one of them. I was concerned about your decisions as solicitor general on the case involving the Holocaust victims suing an Italian insurance company, and the Second Circuit bows to the executive position, saying, well, that ought to be decided between Italy and the United States on how that's to be handled. I think that's wrong. But at least the Supreme Court ought to decide it.
I'm not going to ask you how you would decide the case, but would you consider it? A case involving the survivors of victims of 9/11 has not been heard, petitioned for cert from the Second Circuit. The Second Circuit said, well, the sovereign immunities case doesn't apply because Saudi Arabia hadn't been declared a terrorist state. That's really got nothing to do with the act, congressional intent; torts are not governed by sovereign immunity.
You disagreed with the Second Circuit that said the acts occurred outside of the country, a distinction that I don't understand. If the consequences of the trade towers and 3,000 Americans are killed, certainly the Sovereign Immunities Act ought to make Saudi Arabia subject to sue. But I wouldn't ask you how you'll decide the case, but -- but if you would take it up.
Another issue which won't be resolved today and perhaps never is how to see to it that the nominees who make statements here on congressional power and on stare decisis follow up on it.
And maybe the closest approach is the idea of televising. In our meeting, you said you favor televising the court. Not exactly the same, but Brandeis talked about sunlight and publicity being the best disinfectant. Well, it is not a disinfectant we are looking for here, but to hold nominees who answer questions here to follow through when they are on the court.