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Arizona Senator Jon Kyl on the Elena Kagan Supreme Court nomination

Friday, May 14, 2010

HH: A lot of news today, including arrests for terror suspects, continued news about Elena Kagan, and to discuss all that and more, I’m joined by United States Senator from Arizona, Jon Kyl, the Republican Whip. Senator Kyl, always a pleasure to talk with you.

JK: Thank you, Hugh, good to be with you and your listeners.

HH: Now I’ve got to ask you first about the Los Angeles City Council’s decision to boycott Arizona. Do you think that’s going to extend to the Arizona firefighters who come over and help out with California is burning?

JK: It’s silly, and no, I don’t think people in Arizona are going to give it any thought. We’re going to continue to deal with our friends in California as we always have, and hope that the political people, who I gather are just trying to score some political points, will either back off or will bother to read the law that they are condemning.

HH: Now Senator, let’s get to the big news. You’re on the Judiciary Committee. How many Supreme Court nominations have you actually considered on that committee?

JK: This will be the fourth.

HH: Well, that is really unusual, and it’s got to be special. What do you think of Elena Kagan as this begins to set up?

JK: Well, we confirmed her as Solicitor General just a little over a year ago, so we know a fair bit about her. But we didn’t delve nearly as much into her background then as we will now, because of course, the position of solicitor general is just a temporary position, and of course, the Supreme Court would be a lifetime appointment. And I made it clear when I supported her nomination for the first position that that in no way suggested how I would vote on this one.

HH: Now Senator, it’s been said she doesn’t have much of a paper trail, but I say she does. It’s just on the shelves of the Clinton Library. Will you be getting the paper from the Clinton White House, and has that request already gone in?

JK: Well, Hugh, as always, you broke the code. She worked in the Clinton administration both on the Domestic Policy Council, and also the White House Counsel’s Office, and her resume’ itself discloses that she played a prominent role in a variety of things, of course, as a resume’ would. We need to find out what that role was. And those records were not obtained in her first confirmation, so they will be requested, and I would hope that the administration would be forthcoming, and whatever records bear on her role there that would be relevant to her Supreme Court confirmation process, we will need to get.

HH: You know, back when the Chief Justice was nominated, he had served as the associate senior counsel in the White House, and I had actually overlapped my service in the White House with him. And I got a call from Dick Hauser, our former boss there, saying everything’s coming out, Hugh, every memo you’ve written, so just be ready for it. Is the same standard going to apply that those pre-decisional memos as a White House lawyer, which would be very illuminating as to how she considers the Constitutionality of the issues, will those be requested by the Committee?

JK: It remains to be seen. But when they talk about a swift confirmation process, of course, that presupposes that we’ll get all of the information that’s been requested. And I have no idea how the White House will respond to those requests for information, but they’re important. For example, there’s one matter that I really don’t want to get into too much, because I don’t know what the facts of it are, but it was a very controversial matter. She was at the center of the controversy. There were questions asked, and requests for information about her role at the time. Those records were not given up publicly, so they remain a mystery. That is one of the matters that we will have to inquire into. My point is this – while there’s not much in her record other than her time as dean at the Harvard Law School, where she denied the military recruiters access to the campus, there is not much in violation of the policy at the time, Don’t Ask, Don’t Tell, the Congressional statute on Don’t Ask, Don’t Tell, and then later the Solomon Amendment. There’s not much else that’s controversial, although she has written several things that are rather controversial. So we’ll need to see in her other job at the Clinton White House just exactly what she did, what advice she gave, and whether she’s in the mainstream, and appears to be somebody that will follow the law.

HH: Now at the time that the Chief Justice was nominated, then-Chairman of Judiciary, Arlen Specter, back when he was a Republican, said he would back it up with a subpoena if the Bush White House was not forthcoming with the Reagan White House papers related to Roberts. Has Chairman Leahy made any such statement thus far?

JK: No, I haven’t heard any such statements. Of course, the Roberts records were coughed up, and they were voluminous. Obviously, they only shed good light on him. And perhaps, that’s what these records will show. I don’t even know what’s there, how many of them there are. Maybe there’s not much. But whatever there is, we have a right to see it.

HH: Is the matter about which you referred earlier, the controversial one, has that been discussed in public, and is the subject matter of it public?

JK: Well, yes, but in only the most general terms. And as I say, I don’t know the facts, and so I’d prefer not to discuss until I do know the facts.

HH: And do you have any idea whether or not she would have opined on the welfare reform act of ’96, of the Defense of Marriage Act, and the other controversial statutes of the mid-Clinton years?

JK: Don’t know, and I mean, that’s one of the things that we might find out. And that would be part of our inquiry.

HH: I also want to raise with you, Senator, I have no idea how you view this, President Clinton initiated the unilateral bombing of Serbia when he was the president. Now at that point, she was the assistant to the president for domestic policy. But I assume they would have sought her advice as a Constitutional lawyer, and a trusted senior advisor. What was your view of the President’s exercise of authority in Serbia at the time of the Kosovo crisis?

JK: First of all, I’m not sure they would have sought her advice. There are others that would probably provide that, and I’d have to go back and see what I said on the subject at the time. I don’t believe that I objected to the bombing campaign, because I thought what was being done over there was pretty bad. But I’d have to go back and refresh my recollection, to tell you the truth, Hugh.

HH: Do you think there’s a chance that she is more pro-executive power than retiring Justice Stevens?

JK: I doubt it, but I don’t know.

HH: All right, in terms of the questions, Senator, you’ve always been good at this. You ask a lot of questions, and you let the nominees talk. Some of your colleagues on both sides of the aisle tend to talk and not leave any time for questions. Have you been discussing with your colleagues that it’s more important to have her talk than them talk?

JK: (laughing) Have you ever tried to tell a Senator shut up?

HH: (laughing)

JK: You’re not likely to succeed at that. I do find I can learn more if I listen than if I talk, but no, Senators will be Senators. But I do believe it’s important to, especially with somebody like Elena Kagan, because she has not been a judge, and therefore you don’t know how she approaches judging based upon her experience. All you can do is to ask her questions, and try to discern from that how she will approach judging. And that’s why I’m anxious to hear her talk.

HH: Now I also wonder, Senator, in terms of the volume of stuff that happens around a Supreme Court nominee, has that already begun? Have the phone calls and the anonymous emails, and the people offering to provide you information, it happens no matter who the nominee is. Has that already begun on this one?

JK: Well, I really don’t know. Most of that goes to the Judiciary Committee chairmen, and I haven’t heard from the ranking member or the chairman that there’s been any untoward amount of that. There have been a lot of people come out publicly, primarily in support of her nomination, though there are some who have come out against it as well. And it is interesting that if you’ve ever written anything or said anything, it does tend to come out in these hearings. Somebody will find it.

HH: Now turning to the merger of the headlines of today and of Monday, a big arrest today in the tri-state area of a jihadist network, obviously, that almost blew up Times Square. And it raises two issues. Will you be asking Elena Kagan about Miranda rights and suspected terrorists? And will you be asking her about the surveillance programs that were compromised by the New York Times and others in the media?

JK: The answer is yes, but I’m not exactly sure how. And here’s why I say that. Cases that are going to come before her on the Supreme Court, if she is confirmed, she shouldn’t be commenting on. But she still has to sort of give us an idea that she doesn’t have preconceived notions about how those cases should come out, should be decided. And so, and we also have a right to question her about her general judicial philosophy about what various amendments to the Constitution mean. So there’s a difficult balance between not getting too close to the facts of cases that she might actually be called upon to determine, and yet find out with enough specificity as to how she might interpret different provision of the Constitution to have a sense of whether she will approach the judging in a fair and balanced way, or with a preconceived notion.

HH: As you sit around and develop questions, Senator, is it fair game to say something like what’s your opinion, Solicitor General Kagan, on the Pentagon Papers case? Is that fair game?

JK: Yeah. You know, the first thing they all say is, you know, based upon a decision of the Court, well that is the law, and regardless what my personal opinions are, I will have to follow that law. But you probably have to be a little more nuanced than that. And for example, you take the 9th Amendment, and say what exactly do you think the 9th Amendment means? Now don’t, you know, we don’t need to talk about facts of any case that might come before you, but tell me what you think it means. How far might it go? That’s the kind of thing that you can begin to get an idea of whether the individual believes that you can breathe all kinds of new rights into the Constitution through the 9th Amendment or not. But it’s a hard thing to do. If they’ve never been a judge before, and I’m not suggesting that you do need to be a judge. We’ve had Chief Justice Rehnquist had not been a judge, and he was a great justice. But the disadvantage is that you have never seem them actually operate under the pressure of having to decide cases. And therefore, you have to base your judgments on other factors. And of course, anybody that rises to this level, and certainly includes Elena Kagan, is very, very adept at expressing herself. And so it’s hard to probably get right deep into her mind in a way that gives you total confidence that you know how she’s going to approach cases.

HH: And a very quick exit question, Senator, the political environment claimed one of your colleagues, Bob Bennett this week. Is this the most unusual Senate cycle that you’ve seen in a long time?

JK: This is the most unusual election cycle I’ve seen since 1994, and it may even exceed that, yes.

HH: Jon Kyl, always a pleasure, Senator. Thanks for spending some time with us. Good luck in the Kagan hearings ahead.

End of interview.

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