HH: We begin with the nomination of Solicitor General Kagan to the United States Supreme Court, and we’re always pleased to welcome United States Senator Jon Kyl from the great state of Arizona. Senator Kyl, thank you, a great pleasure, even on a sad day. I know you were often and almost always opposite Robert Byrd on key issues, but a lion of the Senate has gone to his reward, and I’m sure it’s a sad day around there.
JK: Well, it is, and actually, yes, we disagreed on a lot of things. But he supported the traditions and rules of the Senate in a way that we need to continue to do. And there’s an effort by the extreme liberals in the Senate to undo some of the most important rights of the minority having to do with filibusters. And frankly, Byrd gave one of his, his last speech, I think, was to the Rules Committee about two weeks ago, in which he upheld the strong tradition of the Senate in being able to slow things down and members having a right to speak, and a 60 vote majority to close debate, and that sort of thing. So he will be remembered by all of us as someone that really wanted to maintain the strongest traditions of the Senate, and we will all respect him for that.
HH: Now Senator Kyl, in terms of the idea that the filibuster rules are going to change, that can’t happen this Congress, can it?
JK: Oh, yes it can, actually. I don’t want to get into a lot of detail about how it can happen, but there are precedents for things to change. And if you’ll remember back when we were talking about a way to end the filibuster for Supreme Court nominees like Miguel Estrada?
JK: And the gang of 14 resulted from that. Well, same kind of rulings that Republicans might have relied upon at that time could be posited by Democrats. So…
HH: Posited against actual legislation as opposed to personnel matters?
JK: Correct. Yeah, and again, I don’t want to get into a lot of detail about how things might happen, but to your question is it possible, the answer is yes.
HH: All right, we’ll come back to that, because that could bring global cap and tax legislation into play.
JK: It could bring anything. It could bring anything up. And that’s my point about Robert Byrd. He understood why you never want to do that, and that’s frankly why I thought that the gang of 14 resolution, even with respect to judges, and you can make a very strong argument that it’s different with respect to judges because of the Constitutional requirement to provide advice and consent. And we always said but this would never apply in regular filibuster situations. But it’s important that we quote from Robert Byrd’s testimony, and let our colleagues know that it would be the wrong thing to do, whether or not they have the power to make it happen.
HH: Now let’s turn to Solicitor General Kagan and her nomination. Number one, have all the documents been produced to your satisfaction, Jon Kyl?
JK: No. There were emails that referenced her that the Library says it might be able to get around to getting us in about four weeks. And obviously, it would be better to have those in time to question her about them. And then there was a privilege claimed for other documents. We have no way of knowing whether it was properly claimed, but we won’t.
HH: Now will that refusal to produce the documents necessary for a full review cause some Senators to talk filibuster?
JK: They might. With respect to the privilege, one should know that roughly the same kind of thing happened during the Roberts nomination, and roughly the same amount of documents were not turned over because of the privilege that was claimed in that situation as well. I do think in this matter of the emails, however, it’s something that both Democrat Leahy and Republican Sessions requested. They just haven’t turned it over, and Leahy has not been willing to press the matter, though the Republicans have. But the fact that we get it before we have to vote on her might be sufficient. There might not be all that much there. We’ll just have to see.
HH: What is the nature of the privilege claim? I am unfamiliar with the details as they applied to Chief Justice Roberts.
JK: Both Kagan and Roberts served in the Office of Legal Counsel of the president, and advised, and gave legal advice that I think a claim of privilege with respect to like personnel matters and all of that might lie. But the problem is you don’t have an independent review of it to see whether in fact it’s legitimately claimed. But in the case of Roberts, those documents were not turned over. And they’re not being turned over in this case, either.
HH: With Chief Justice Roberts, was any review of those documents held by a, for example, the senior minority member of the Judiciary Committee?
JK: No. No, not to my knowledge, no.
HH: How did the first day go?
JK: Pretty much as expected. Republicans raised appropriate questions. It was respectful. She noted that all of her meetings with Senators have been courteous. Democrats primarily not only applauded her for having a wonderful background and being a great person, but also took the opportunity to slam what they call the Roberts Court and its activism in coming down on the side of big business repeatedly at the expense of the little guy. All a fraudulent claim, but that’s what they’re arguing.
HH: Now today, the United States Supreme Court handed down a decision which I’ll be talking about today, Christian Legal Society V. Martinez, which rules against the Christian Legal Society at Hastings for having a policy that said you’ve got to uphold the central tenets of the orthodox creed, in essence.
HH: Will that be a subject of conversation with General Kagan?
JK: I don’t know. I need to review the opinion, and there’s always a question about asking her about an opinion. She’ll say well, I haven’t read it, or it’s stare decisis, and presumably I would follow it in the absence of some other crazy circumstance, and she would say the same thing about other cases as well. I will be questioning her about the Court taking cert today in a case in which she was asked by the Court as solicitor general whether the Court should take it. This was the challenge to the first Arizona law four years ago on hiring illegal aliens intentionally or knowingly, and the Court, the district court ruled in favor of the statute’s Constitutionality. The 9th Circuit unanimously upheld it. And so now, it’s been, cert’s been requested in the Supreme Court, and the Court asked the office of attorney general should we take this case, and if so, what would you suggest as to its Constitutionality. And she said yes, you should, and here’s the section that’s unconstitutional. And she’s wrong in my humble opinion, but the Court, based on her advice, I’m sure, has taken the case now.
HH: So that will go up. That’ll be an interesting conversation.
JK: Yup, and we’re going to have a conversation about that.
HH: I find the Hastings decision interesting, because she’s been a law school dean. And I would like to know what she thinks about policies that demand religious groups admit people that don’t agree with their central tenet.
JK: Yeah, it’s a fascinating case, and I don’t understand the logic of the decision, obviously, but I need to review it, and then we’ll see whether we can get some questions that are appropriate from it.
HH: There was also a decision last week, Senator Kyl, from New York’s highest court, about Columbia University being allowed to condemn 17 acres of the Upper West side for their private use. It echoes of Kelo. Will Kelo come up in the course of this conversation?
JK: Yes, it will. It’s in some of the questions that I’m going to be asking. It’ll come up kind of later in my questioning, but I hope to bring it up if other people don’t.
HH: And where else…
JK: And here’s the context. All of this talk about the big guy versus the little guy, well, this is a classic case of big government taking property from a little guy, and improperly in our view.
JK: So this business about oh, the Court always rules for the big guy and hurts the little guy, yeah, well, what about this case?
HH: Now what about deportment? In terms of, you’ve seen a lot of nominees come before the Judiciary Committee. I assume she is just very well prepared, as one would expect a professor and a dean to be, and a solicitor general. Is that what you find?
JK: Well, we’ll see tomorrow when she begins answering questions. But I have no doubt that she will be. She is very professional. As you say, her demeanor is just exactly right. I noticed how she sat there today listening to each of us. She had a slight smile on her face no matter what was being said, and never indicated agreement or disagreement with anything that was being said, and was very polite, of course. So I think she’s very good in that regard, and I think she will be well-prepared.
HH: There is video of one of your colleagues nodding off today during the proceedings, and it’s Al Franken. And I know you’re not going to suggest anything is inappropriate by one of your colleagues, but how hard is it to stay awake when your colleagues are talking?
JK: Actually, sometimes, it’s not easy.
JK: But yeah, I guess no comment.
HH: All right, last question. It’s got nothing to do with her, but the Secretary of State said they’re going to sue Arizona over the new law. Have you yet been advised by the administration that they’re going to do that on the new immigration law?
JK: No. Some high-ranking official allegedly, off the record, confirmed that the discussions were underway, but nothing else. So the Governor of Arizona fired back to Eric Holder and said hey, it would be kind of nice if you guys would tell us if you’re going to sue us instead of finding it out over Ecuadorian television. But you know, this is so unseemly. In Arizona today, the U.S. attorney will not prosecute marijuana cases less than 500 pounds, because they don’t have the personnel to do it. But they’ve got time to have lawyers spending I’m sure hundreds of hours figuring out how to attack an Arizona statute that hasn’t even gone into effect yet. It’s a misallocation of judicial resources at a minimum.
HH: Jon Kyl, always a pleasure, Senator. We’ll look forward to checking back with you as the Kagan hearings roll on, and our condolences on the loss of your colleague, Robert Byrd. We never agreed with him, but he was a great lion of the Senate.
End of interview.