Senators Cardin & Sessions on the Kagan Hearing

Senators Cardin & Sessions on the Kagan Hearing

By John King, USA - June 28, 2010

KING: The nominee's day began with an oval office pep talk from the president. But how did it end? Closer to confirmation or to controversy? Jeff Sessions is the top Republican on the judiciary committee and his take will have significant sway across the GOP. And Ben Cardin is one of the committee Democrats who has questions about Kagan but also wants to make a broader point about the court's current conservative majority.

Gentlemen, welcome. Let me start this quick one at the end of day one. The feistiness will come tomorrow when you get to answer specific questions, but to you, Senator Sessions, she said judges should be modest. Judges should show restraint. Judges should respect the law. Did she win you over?

SEN. JEFF SESSIONS, (R) JUDICIARY COMTE. RANKING MEMBER: You know, sort of mayor promised that too, and she's been one of the more activist members of the court voting with (INAUDIBLE) more than any other judge. So, I think there is some cynicism on our side. We want to know with more specificity. She said she's going to be more forthcoming than others have in the past. So, maybe, she can be more specifically convincing. Just to say that I think it is not the final answer.

KING: Not the final answer. Senator Cardin, in your opening statement today, you're complimentary to her in some ways. You said you had some questions for her, but you also took after the Robert's court. I want you to listen to a little bit of what you said because after that I have a question.


SEN. BENJAMIN CARDIN, (D) JUDICIARY COMMITTEE: Time and time again by the narrowest of margins this activist court has sided with big business over main street America wiping away protections set in place by years of legal precedent and congressional action.


KING: Your colleague would disagree, but let's just say for a minute that your take on Chief Justice Roberts, on Justice Scalia, on Justice Alito, on Justice Thomas is correct.

CARDIN: They're not being confirmed.

KING: Were you raising that point because are you worried that because you don't know much about Elena Kagan she could become like that?

CARDIN: No, I want the justice is going to follow the precedent of the court and congressional intent. And I think the Roberts' court has not done that. Citizen united is a perfect case. They reversed previous rulings by the Supreme Court and congressional act by taking a case, defining it the way they wanted to in order to lay out corporate America to have more say in elections. Pardon?

KING: Unions as well.

CARDIN: Yes, but I think that's activism. I think that's something I don't want to see on the court. I want to see a court that's going to follow legal precedent to expand the rights of the individual against the abuses of power whether it's government or whether its big business or special interest.

KING: I'm not a lawyer. I assume in law school, there's a definition of activism that the two of you might be able to agree on. Is it fair to say that in Supreme Court nomination battles in today's time that activism is if you're a conservative that means you're a liberal and you're going to do things we don't like, and if you're and left of center, it means you're a conservative, you're going to do things we don't like.

SESSIONS: My philosophy as Senator Cardin says a good definition which is that a judge who allows their personal and political, social religious views to cause them to not render an objective fair decision based on the law is an activist. They can be conservative or liberal. I think Senator Cardin is exaggerating the cases in calling them activists, and I certainly don't think citizen united meets that standard. Just because you reverse a prior decision if it's validly reversed based on constitutional principles, it's the right thing to do. That's not activist.

KING: You gave an opening statement in which I would say you laid out the Republican questions and potentially the republican case against Elena Kagan. I want you to listen to this part of your statement.


SESSIONS: Ms. Kagan has less real legal experience of any nominee in at least 50 years and not just that the nominee has not been a judge. She has barely practiced law and not with the intensity and duration from which I think real legal understanding occurs. Ms. Kagan has never tried a case before a jury.


KING: Now, there's a bit of a deja vu here back to what the Democrats were saying when President Bush in the previous administration nominated his White House council, Harriet Miers. And I want to read a statement you issued back then. "It's not necessary that Miers have previous experience as a judge in order to serve on the Supreme Court. It's perfectly acceptable to nominate outstanding lawyers to that position. I look forward to the confirmation process and to learning more about her judicial philosophy.

Is Elena Kagan less qualified than Harriet Miers? Harriet Miers was a corporate lawyer. She did do some litigation. And Elena Kagan could say I have a much more accomplish work (ph) in academia.

SESSIONS: Harriet Miers had 26 years of full-time legal practice in a law firm in court and out of court throughout those years and was quite a respected lawyer. And I never felt she was the highest quality nominee the president could have submitted.

KING: You were being nice to a Republican president?

SESSIONS: Yes. And I think she was a good person and probably would have done a fine job, but she was, I don't think, the perfect person for that job. I felt Sam Alito who replaced her with such magnificent experience and such real knowledge of the law was a better choice. This nominee, clearly, in the last 50 years, had the least real practical legal experience. If you haven't been in court, you haven't tried cases, you haven't been before judges and sort of haven't been a judge, all of that is a real lack. I don't think there's any doubt about it.

KING: Virtue or does it raise questions?

CARDIN: She's the solicitor general of the United States. Generally referred to as the tenth justice. She's argued cases before the Supreme Court. She's was a dean of Harvard Law School. She comes to this process with rich background, and as was pointed out, this is the first time in history of the Supreme Court where all of the justices were appellate court federal judges.

One-third of all of the justices of the Supreme Court came to us other than through the federal bench. I think having a little diversity on the court other than being a federal judge is not a bad idea.

KING: I want to lay out one more concern raised by a Democrat. This is Russ Feingold about executive powers. This is a huge issue for the court because you have terrorism cases, a lot of cases carrying over from the Bush administration. How do we deal with (INAUDIBLE)? Listen to Senator Feingold.


SEN. RUSS FEINGOLD, (D) JUDICIARY COMMITTEE: I also hope that you will have the wisdom and the courage that the justice you have been nominated to replace, Justice John Paul Stevens, showed time and time again in drawing the line against an executive branch that sought powers that endangered the individual rights and freedoms that our constitution guarantees.


KING: Tomorrow, when we get to Q&A and the day after that if necessary, is it going to be more about the future, the terrorism cases in the court, maybe the health care law coming up than in the past we've seen discussions about Roe v. Wade and abortion rights and cases that many would tell you whether agree or disagree or settled law. Will we looking that way at those kinds of cases tomorrow?

CARDIN: Absolutely.

SESSIONS: I don't think there's any doubt about it. We just had today the 5-4 ruling from the Supreme Court on the gun case in Chicago, headed in 5-4 the other way any state in any city could completely ban firearms in America. The right to keep and bear arms as an individual right is hanging by one vote on the Supreme Court. She will be one vote on the Supreme Court. These are important issues.

There are a lot of other issues out there like that, and we need to know that the judge will protect those explicit constitutional rights. The right of free speech. The right of free press. The right not to have your property taken except for public use.

KING: Why is the biggest question mark you get from groups left of center who are little nervous that she could be like a suitor (ph) or maybe a surprise.

CARDIN: I'm not sure there's a great deal of concern here, but let me point out, I think Senator Feingold's point is a good one and that is, we want a justice and we want a Supreme Court that will protect the individual against abuses of government. Government power can become very abusive. And Senator Feingold was raising that point in his question. It's not always the populist position. We want the Supreme Court is not meant to be a populist body but meant to do what the law dictates without regard to politics or without regard to popularity.

KING: Let me ask you quickly, as you go, you're the ranking Republican on judiciary, you're also on the Armed Services Committee. Tomorrow, you're going to have Elena Kagan still before the judiciary committee and General Petraeus before armed services. Are you going to wear running shoes tomorrow back and forth? How can you handle that one?

SESSIONS: You know, my first responsibility will be at judiciary, but I did meet with General Petraeus Last week. And he's just so fabulous. We're just lucky to have him, and he's been senior commander for Afghanistan, so I think he'll do very well at the testimony.

KING: And you'll miss more of that when you have to. Senator Sessions, Senator Cardin, appreciate you coming.


John King, USA

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