Questioning Supreme Court Nominees About Their Views on Legal or Constitutional Issues: A Recurring Issue

Questioning Supreme Court Nominees About Their Views on Legal or Constitutional Issues: A Recurring Issue

Questioning Supreme Court Nominees About
Their Views on Legal or Constitutional Issues:
A Recurring Issue
Denis Steven Rutkus
Specialist on the Federal Judiciary
June 23, 2010
Congressional Research Service
7-5700
www.crs.gov
R41300
CRS Report for Congress
P
repared for Members and Committees of Congress

Questioning Supreme Court Nominees About Current Legal or Constitutional Issues

Summary
In recent decades a recurring Senate issue has been what kinds of questions are appropriate for
Senators to pose to a Supreme Court nominee appearing at hearings before the Senate Judiciary
Committee. Particularly at issue has been whether, or to what extent, questions by committee
members should seek out a nominee’s personal views on current legal or constitutional issues or
on past Supreme Court decisions that have involved those issues.
This issue might be of particular relevance to the Senate Judiciary Committee as it prepares for
the scheduled start, on June 28, 2010, of confirmation hearings for Supreme Court nominee Elena
Kagan. For the nominee herself once contended, in a 1995 book review, that a Supreme Court
confirmation hearing should focus not on “the objective qualifications or personal morality of the
nominee” but on the nominee’s “substantive views.” Such aims, she wrote approvingly, were
achieved by the committee in the 1987 confirmation hearings for Supreme Court nominee Robert
H. Bork. The Bork hearings, she said, presented to the public “a serious discussion of the
meaning of the Constitution, the role of the Court, and the views of the nominee; that discussion
at once educated the public and allowed it to determine whether the nominee would move the
Court in the proper direction.” By contrast, “subsequent hearings,” she wrote, “have presented to
the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of
viewpoints and personal anecdotes have supplanted legal analysis.”
Also in her 1995 article, Ms. Kagan said that what “must guide” a decision on whether to confirm
a person to be a Justice is a Senator’s “vision of the Court and an understanding of the way a
nominee would influence its behavior.” Further, she said, if questioning on “substantive positions
ever were to become the norm, the nominees lacking a publication record would have no
automatic advantage over a highly prolific author.” She emphasized, however, that she was not
arguing “that the President and the Senate may ask, and a nominee must answer, any question
whatsoever.” Some kinds of questions, she said “do pose a threat to the integrity of the
judiciary”—for example, if a Senator “asked a nominee to commit herself to voting a certain way
on a case that the court had accepted for argument.”
In 2009, in testimony before the Judiciary Committee, as nominee to be Solicitor General, Ms.
Kagan appeared to signal somewhat of a change in the views she expressed in 1995. In reply to a
Senator’s question at the 2009 hearings, Ms. Kagan stated that, while the Senate, when
questioning a nominee, “has to get the information that it needs,” the “nominee for any particular
position, whether it is judicial or otherwise, has to be protective of certain kinds of interests.”
This report also examines four recent Supreme Court confirmation hearings and provides excerpts
of Senators asking, and nominees responding to, questions. It reveals a usual practice of nominees
declining to respond to committee questions seeking their views about current legal or
constitutional issues. Notable in this regard were the 1993 Supreme Court confirmation hearings
for nominee Ruth Bader Ginsburg. In her opening statement to the Judiciary Committee, Judge
Ginsburg articulated a limit on what the Senators could expect their questioning to elicit from her,
stating she would be constrained, when responding to questions, from providing any “previews,”
“hints,” or “forecasts” of how she as a Justice might cast her vote on issues coming before the
Court: These limits subsequently came to be known informally as the “Ginsburg Rule,” standing
for the principle—invoked frequently by later Court nominees—that nominees should not, in
replying to questions from Judiciary Committee members, disclose their personal views or
opinions on issues if there were a possibility the issues in the future would come before the Court.
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Questioning Supreme Court Nominees About Current Legal or Constitutional Issues

Contents
Introduction ................................................................................................................................ 1
Purposes of Committee Questioning and Range of Subjects Historically Covered........................ 2
Nominee Reticence Becomes the Norm....................................................................................... 6
The Ginsburg Hearings, 1993................................................................................................ 6
The Roberts Hearings, 2005 ................................................................................................ 10
The Alito Hearings, 2006 .................................................................................................... 12
The Sotomayor Hearings, 2009 ........................................................................................... 15
Elena Kagan’s Position on Questioning Supreme Court Nominees ............................................ 19
Comments Expressed in 1995 Law Review Article.............................................................. 19
Summarized Themes of Carter’s Book .......................................................................... 19
Praised the Bork Hearings, Criticized Others That Followed.......................................... 19
Said Concern Should Be with How Nominee Would Influence Court ............................ 20
Advocated Exploration of Nominee’s ‘Substantive Views’ ............................................ 20
Said Nominees with Little Publication Record Would No Longer Have Advantage........ 20
Made Distinction Between Expressing Views on Issues and Making
Commitments ............................................................................................................ 21
Statements Made in 2009 as Solicitor General Nominee ...................................................... 21
Observations on Whether Kagan Will, or Should, Express Views on Current Issues at
Her Own Supreme Court Confirmation Hearing ............................................................... 24

Contacts
Author Contact Information ...................................................................................................... 25

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Questioning Supreme Court Nominees About Current Legal or Constitutional Issues

Introduction
In recent decades a recurring Senate issue has been what kinds of questions are appropriate for
Senators to pose to a Supreme Court nominee appearing at hearings before the Senate Judiciary
Committee. Particularly at issue has been whether, or to what extent, questions by committee
members should seek out a nominee’s personal views on current legal or constitutional issues or
on past Supreme Court decisions that have involved those issues. Usually, when Senators at
confirmation hearings have asked Supreme Court nominees to comment on topical legal and
constitutional issues, the nominees have firmly declined to do so. In those situations, the
nominees typically have taken the position that answers to questions which convey their personal
views would conflict with their obligation to avoid appearing to make commitments, or provide
signals, as to how they would vote as a Justice on future cases.
For their part, Senators on the Judiciary Committee generally have agreed that Supreme Court
nominees should not, in replying to committee questions, indicate how they would rule on a
matter being litigated in the courts. More complicated questions arise, however, regarding the
extent to which it is appropriate to ask nominees about issues that might come before the Court,
and the circumstances under which a nominee, in replying, would be prejudging the issues.
These issues might be of particular relevance to the Senate Judiciary Committee as it prepares for
the scheduled start, on June 28, 2010, of confirmation hearings for Supreme Court nominee Elena
Kagan. For the nominee herself once contended that a Supreme Court confirmation hearing
should focus not on “the objective qualifications or personal morality of the nominee” but on the
nominee’s “substantive views.” The Senate, she elaborated, in a 1995 law review article,
… ought to view the hearings as an opportunity to gain knowledge and promote public
understanding of what the nominee believes the Court should do and how she would affect
its conduct. Like other kinds of legislative fact-finding, the inquiry serves both to educate
members of the Senate and public and to enhance their ability to make reasoned choices.
Open exploration of the nominee’s substantive views, that is, enables senators and their
constituents into engage in a focused discussion of constitutional values, to ascertain the
values held by the nominee, and to evaluate whether the nominee possesses values that the
Supreme Court most urgently requires. These are the issues of greatest consequence
surrounding any Supreme Court nomination (not the objective qualifications or personal
morality of the nominee); and the process used in the Senate to serve the intertwined aims of
education and evaluation ought to reflect what most greatly matters. 1
Such aims, she wrote approvingly, were achieved by the committee in the 1987 confirmation
hearings for Supreme Court nominee Robert H. Bork. Those hearings, she said, presented to the
public “a serious discussion of the meaning of the Constitution, the role of the Court, and the
views of the nominee; that discussion at once educated the public and allowed it to determine
whether the nominee would move the Court in the proper direction.” By contrast, she maintained,

1 Elena Kagan, “Confirmation Messes, Old and New,” University of Chicago Law Review, vol. 62 (1995), p. 935,
accessed, from Senate Judiciary Committee website, at http://judiciary.senate.gov/nominations/
111thCongressExecutiveNominations/upload/KaganSG-Question13A-Part10.pdf. (Hereafter cited as Kagan,
“Confirmation Messes.”) As noted later in this report, Ms. Kagan in 2009 signaled that she no longer held some of the
views she expressed in her 1995 law review article.
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Subsequent hearings have presented to the public a vapid and hollow charade, in which
repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have
supplanted legal analysis. Such hearings serve little educative function, except perhaps to
reinforce lessons of cynicism that citizens often glean from government. Neither can such
hearings contribute toward an evaluation of the Court and a determination whether the
nominee would make it a better or worse institution.2
Although made a decade and a half ago, such comments, in large part because they were authored
by the current Supreme Court nominee, have refocused attention on the issue of what kinds of
questions are appropriate for Senate Judiciary Committee members to pose to Supreme Court
nominees. To provide an overview of this issue, the following pages, in separate sections, discuss
the following:
• The various purposes members of the Senate Judiciary Committees are
understood to have in questioning Supreme Court nominees at their confirmation
hearings, and the wide range of subject areas that historically have been posed to
those nominees.
• The usual, if not invariable, practice of Supreme Court nominees, particularly
since the 1993 hearings on nominee Ruth Bader Ginsburg, to decline to respond
to committee questions seeking their views about current legal or constitutional
issues or issues likely to come before the Court.
• Past statements by Elena Kagan concerning the kinds of questions she
maintained were appropriate to pose to a nominee at Supreme Court confirmation
hearing (examining first Ms. Kagan’s 1995 law review article on this subject and,
later, her 2009 testimony, before the Senate Judiciary Committee, as nominee to
be Solicitor General of the United States, during which she signaled a change in
some of the views expressed in 1995).
• Differing views expressed by Senators on whether Elena Kagan should express
her views on current legal or constitutional issues at her own Supreme Court
confirmation hearing.
Purposes of Committee Questioning and Range of
Subjects Historically Covered
In 1955, hearings on the Supreme Court nomination of John M. Harlan marked the beginning of a
practice, continuing to the present, of each Court nominee testifying before the Senate Judiciary
Committee.3 The principal business of these hearings is the questioning of the nominee by
committee members (with the committee thereafter also hearing the testimony of other public
witnesses speaking either in favor of or in opposition to the nominee’s confirmation).
A Supreme Court confirmation hearing typically begins with a statement by the chair of the
Judiciary Committee welcoming the nominee and outlining how the hearing will proceed. Other

2 Ibid., p. 941.
3 See CRS Report RL31989, Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and
Senate, by Denis Steven Rutkus, (under heading “Historical Background”).
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members of the committee follow with opening statements, and a panel of “presenters” introduces
the nominee to the committee. It is then the nominee’s turn to make an opening statement, after
which begins the questioning of the nominee by Senators serving on the Judiciary Committee.
Typically, the chair begins the questioning, followed by the ranking minority member and then
the rest of the committee in descending order of seniority, alternating between majority and
minority members, with a uniform time limit for each Senator during each round. When the first
round of questioning has been completed, the committee begins a second round, which may be
followed by more rounds, at the discretion of the committee chair.
For members of the Judiciary Committee, questioning of the nominee may serve various
purposes. For some Senators who are undecided about how they should vote on confirmation, the
purpose of questions may be to shed light on the nominee's professional qualifications,
temperament, and character, or on his or her understanding of the Constitution, the role of the
judiciary, and the extent of the judiciary’s powers under the Constitution. Other Senators who are
undecided may seek to glean from the nominee's responses signs of how the nominee, if
confirmed as a Justice, might be expected to rule on particular issues or affect the ideological
balance of the Court.4
Some Senators, as the hearings begin, may already be “reasonably certain about voting to confirm
the nominee,” yet “also remain reasonably open to counter-evidence,” and thus use the hearings
“to pursue a line of questioning designed to probe the validity of this initial favorable
predisposition.” 5 Still others, however, may come to the hearings “having already decided how
they will vote on the nomination” and, accordingly, use their questioning of the nominee to try “to
secure or defeat the nomination.” For some Senators, the hearings may be a vehicle through
which to impress certain values or concerns upon the nominee, in the hope of influencing how he
or she might approach issues later as a Justice.6 The hearings also may represent to some Senators
an opportunity, through their questioning of the nominee, to draw the public's attention to certain
issues, to advocate their policy preferences, or to associate themselves with concern about certain
problems. Senators, it has been noted, “may play multiple roles in any given hearings.”
For his or her part, however, a nominee might sometimes be reluctant to answer certain questions
that are posed at confirmation hearings. As already noted, a nominee might decline to answer for
fear of appearing to make commitments on issues that later could come before the Court.7 A

4 At the very least, one scholar maintains, the questioning process “can be useful to Senators if they recognize its
limitations and attempt to frame questions that are reasonably calculated to elicit meaningful responses. The
questioning process can and has provided useful insights into the general thinking of nominees on important
constitutional issues such as the scope of various provisions of the Bill of Rights. The process has helped to measure
the mental acuity of nominees, and to clarify their approach to the process of adjudication.” William G. Ross, “The
Questioning of Supreme Court Nominees at Senate Confirmation Hearings: Proposals for Accommodating the Needs
of the Senate and Ameliorating the Fears of the Nominees,” Tulane Law Review, vol. 62, November 1987, pp. 109.
(Hereafter cited as Ross, “Questioning of Supreme Court Nominees.”)
5 George L. Watson and John A. Stookey, Shaping America; the Politics of Supreme Court Appointments (New York:
HarperCollins College Publishers, 1995), p. 150. (Hereafter cited as Watson and Stookey, Shaping America.)
6 See Stephen J. Wermiel, “Confirming the Constitution: The Role of the Senate Judiciary Committee,” Law and
Contemporary Problems, vol. 56, Autumn 1993, p. 141, in which author maintains that, since the 1987 hearings on
Supreme Court nominee Robert H. Bork, a purpose of Senators on the Judiciary Committee has been “to identify points
of constitutional concern and pursue those concerns with nominees, with the hope that, once confirmed, the new
Justices will remember the importance of the core values urged on them by the senators or at least feel bound by the
assurance they gave during their hearings.”
7 Illustrative of such a concern was the following statement by nominee David H. Souter, at a September 14, 1990,
hearing, explaining his refusal to answer a question concerning the issue of a woman's right, under the Constitution, to
(continued...)
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nominee also might be concerned that the substance of candid responses, or the wrong choice of
words in response, to certain questions could displease some Senators and thus put the nominee's
chances for confirmation in jeopardy.8 “Nominees,” a former chairman of the Judiciary
Committee once reportedly remarked, “tend to answer just as many questions as they have to in
order to be confirmed.”
The “ground rules” for asking and answering questions at Supreme Court confirmation hearings,
one law professor has noted, “are kind of ad hoc.” Republicans and Democrats in the Senate, he
maintains, have alternately argued for and against expansive questioning over the years, invoking
“the history they need for the particular occasion.” While Judiciary Committee members have
never reached formal agreement among themselves or with Supreme Court nominees regarding
the proper scope of questioning and answering, it generally might be said that little controversy
has been raised concerning the appropriateness of hearings questions dealing with the following
areas:
• the nominee's knowledge of the law, the Constitution and past Supreme Court
rulings, and the major issues addressed in those rulings;
• the nominee's “judicial philosophy,” insofar as that expression concerns his or her
overriding objectives as a judge and general approach to judicial decision
making;9
• the nominee's past writings or public statements (including judicial opinions as a
lower court judge)10 on social, economic, political, legal, or constitutional issues;
and

(...continued)
have an abortion: “Anything which substantially could inhibit the court's capacity to listen truly and to listen with as
open a mind as it is humanly possible to have should be off-limits to a judge. Why this kind of discussion would take
me down a road which I think it would be unethical for me to follow is something that perhaps I can suggest, and I will
close with this question.
“Is there anyone who has not, at some point, made up his mind on some subject and then later found reason to change
or modify it? No one has failed to have that experience. .... With that in mind can you imagine the pressure that would
be on a judge who had stated an opinion, or seemed to have given a commitment in these circumstances to the Senate
of the United States, and for all practical purposes, to the American people?” U.S. Congress, Senate Committee on the
Judiciary, Nomination of David Souter To Be Associate Justice of the Supreme Court of the United States, hearings,
101st Cong., 2nd sess., September 13, 14, 17, 18, and 19, 1990 (Washington: GPO, 1991), p. 194.
8 In this vein, one journalist has written, the perspective of Supreme Court nominee John G. Roberts Jr., as he prepared
for his 2005 confirmation hearings, was that he “knew he could afford no mistakes. He worried that one answer, one
ten-second response to one question over the course of fifteen hours of questioning, could doom his chances.” Jan
Crawford Greenburg, Supreme Conflict (New York: Penguin Press, 2007), p. 234.
9 See for example, the willingness of Judge Ruth Bader Ginsburg, at her 1993 Supreme Court confirmation hearings, to
“state in a nutshell how I view the work of judging,” while cautioning, moments later in her testimony, that it would be
“injudicious” to “rehearse here what I would say and how I would reason” on questions that the Supreme Court might
be called on to decide. U.S. Congress, Senate Committee on the Judiciary, Nomination of Ruth Bader Ginsburg, to Be
Associate Justice of the Supreme Court of the United States, hearings, 103rd Cong., 1st sess., July 20-23, 1993
(Washington: GPO, 1994), pp. 51-52.
10 For instance, at her confirmation hearings in July 2009, Supreme Court nominee Sonia Sotomayor was asked
questions about public statements she had made prior to her nomination (and which opponents of her nomination had
criticized) of appellate judges making policy and of the experiences of a “wise Latina woman” versus those of a white
male judge. Senators on the Judiciary Committee also asked her about her participation in a three-judge appellate panel
ruling in a case involving reverse discrimination allegations by a group of white firefighters against city officials in
New Haven, Connecticut (a ruling reversed by the Supreme Court in June 2009, after Judge Sotomayor’s nomination to
the Court but prior to the start of her confirmation hearings). See Tony Mauro, “During Senate Questioning, Sotomayor
(continued...)
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• the nominee's past actions as a public figure.
More at issue, by contrast, has been the propriety of Senators asking, and nominees providing
direct answers to, questions concerned with the views of nominees on the following subjects:
• the soundness of particular Supreme Court rulings, including whether they
should be overruled;
• legal or constitutional issues not immediately pending but which might someday
come before the Court; and
• the relative weight to give to competing constitutional values in hypothetical
cases.
All Senators, one news analysis generalized, “agree that nominees should not signal how they
might rule on a case that could come before them on the Court.” Such agreement, it can be
assumed, is grounded in the notion that a judicial nominee should not prejudge a case or
controversy. In contrast with political branch officials, judges are expected not to have any
particular platform of ideas; rather they are required to apply the rule of law in an impartial
manner to each new Article III “case or controversy.” This rationale is reflected in judicial ethics
canons, most notably Canon 5A(3)(d)(ii) of the American Bar Association's Model Code of
Judicial Conduct. This canon provides that a judge or judicial candidate “shall not ... with respect
to cases, controversies, or issues that are likely to come before the court, make pledges, promises
or commitments that are inconsistent with the impartial performance of the adjudicative duties of
the office.” Further, Senators on the Judiciary Committee, as well as the nominee, would be
aware that a comment by the latter about a pending case at the confirmation hearings, would,
under federal law as well as judicial ethical canons, “raise a serious question of bias that might
compel recusal.”
For their part, committee members may differ in their assessments of a nominee's stated reasons
for refusing to answer certain questions. Some may be sympathetic and consider a nominee's
refusal to discuss certain matters as of no relevance to his or her fitness for appointment. Others,
however, may consider the nominee's views on certain subjects as important to assessing the
nominee's fitness and hence regard unresponsiveness to questions on these subjects as sufficient
reason to vote against confirmation.11 Protracted questioning, occurring over several days of
hearings, is likely especially if the nominee is relatively controversial or is perceived by
committee members to be evasive or insincere

(...continued)
Explains Controversial Statements, Defends Rulings,” The National Law Journal, July 15, 2009, at
http://www.law.com;, Peter Baker and Neil A. Lewis, “Republicans Press Judge About Bias and Activism,” The New
York Times, July 15, 2009, pp. A1, A15; and Tom LoBianco, “Nominee Hit with Hot-Button Issues; Sotomayor
Explains ‘Wise Latina’ Again,” The Washington Times, July 16, 2009, p. A9.
See also Margaret Williams and Lawrence Baum, “Questioning Judges About Their Decisions; Supreme Court
Nominees Before the Senate Judiciary Committee, Judicature, vol. 90, September-October 2006, pp. 73-80, which
examines the number, and tone, of confirmation hearing questions posed to Supreme Court nominees, from Harlan
(1955) to Breyer (1994), about prior judicial decisions.
11 In this vein, one Senator has written that, in his judgment, “the Senate should resist, if not refuse, to confirm Supreme
Court nominees who refuse to answer questions on fundamental issues. In voting on whether to confirm a nominee,
senators should not have to gamble or guess about a candidate's philosophy but should be able to judge on the basis of
the candidate's expressed views.” Arlen Specter with Charles Robbins, Passion for Truth, 1st Perennial ed. (New York:
Perennial, 2001), p. 342.
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Nominee Reticence Becomes the Norm
The following paragraphs examine the usual, if not invariable, practice of recent Supreme Court
nominees, at their confirmation hearings, to decline to respond to committee questions seeking
their views about current legal or constitutional issues or issues likely to come before the Court.
Selected examples of this practice were identified in an examination of the published transcripts
of four recent Supreme Court confirmation hearings, and they are provided below as excerpts
from the hearings—showing Senators asking, and the nominees responding to, questions.
The examination begins first with the Supreme Court nomination hearings of Ruth Bader
Ginsburg in 1993. The Ginsburg hearings might be considered of particular interest because the
nominee, at her hearings, articulated grounds for declining to respond to certain types of
questions posed to her, which subsequently came to be known informally, but widely, as the
“Ginsburg Rule.” While media commentators are not in agreement as to the exact formulation of
this “rule,”12 there appears general agreement that it stands for the principle—invoked frequently
by later Supreme Court nominees—that nominees should not, in replying to questions from
Judiciary Committee members, disclose their personal views or opinions on issues if there is a
possibility that the issues in the future will come before the Court.
Also examined below, after the Ginsburg hearings, are relevant excerpts from the three most
recent Supreme Court confirmation hearings—those for nominees John G. Roberts Jr., Samuel A.
Alito Jr., and Sonia Sotomayor.
The Ginsburg Hearings, 1993
At her 1993 Supreme Court confirmation hearings, nominee Ruth Bader Ginsburg in her opening
statement urged the Judiciary Committee to judge her fitness to be a Justice principally on the
written record of her past 34 years of legal experience—as a law teacher, practicing attorney, and
federal appellate court judge.13 She then articulated a limit on what the Senators could expect

12 See, for example, Marcia Coyle, “Sotomayor Hearing Revives Old Battle: Why Do Senators Allow High Court
Nnominees to Dodge Questions on Hot-Button Issues?”, The National Law Journal, vol. 31, July 13, 2009, which
refers to “the so-called Ginsburg Rule—[that the nominee provide to the Judiciary Committee] ‘no hints, no forecasts,
no previews’” of how he or she might vote on an issue coming before the Court. Another observer provides a more
value-laden description, recalling that in 1993 then-Judge Ginsburg “invoked what became known as the ‘Ginsburg
Rule’ to decline pretty much any question she wanted on the grounds that the issue might come before her on the Court,
so an answer could jeopardize her judicial impartiality.” Dan Froomkin, “Kagan Under Obligation to Open Up,” June
17, 2010, accessed at http://www.huffingtonpost.com.
13 She told the Judiciary Committee’s members,
You have been supplied, in the 5 weeks since the President announced my nomination, with
hundreds of pages about me and thousands of pages I have penned—my writings as a law teacher,
mainly about procedure; 10 years of briefs filed when I was a courtroom advocate of the equal
stature of men and women before the law; numerous speeches and articles on that same theme; 13
years of opinions—counting the unpublished together with the published opinions, well over 700 of
them—all decisions I made as a member of the U.S. Court of Appeals for the District of Columbia
Circuit; several comments on the roles of judge and lawyers in our legal system. That body of
material, I know, has been examined by the committee with care. It is the most tangible, reliable
indicator of my attitude, outlook, approach, and style. I hope you will judge my qualifications
principally on that written record, a record spanning 34 years.
U.S. Congress, Senate committee on the Judiciary, Nomination of Ruth BaderGinsburg, to be Associate Justice of the
Supreme Court of the United States, 103rd Cong., 1st sess., July 20-23, 1993 (Washington: GPO, 1994), p. 52, accessed,
(continued...)
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their questioning to elicit from her. For, she said, she would be constrained, when responding to
Senators’ questions, from providing any “previews,” “hints,” or “forecasts” of how she as a
Justice might cast her vote on issues that might come before the Court:
Because I am and hope to continue to be a judge, it would be wrong for me to say or to
preview in this legislative chamber how I would cast my vote on questions the Supreme
Court may be called upon to decide. Were I to rehearse here what I would say and how I
would reason on such questions, I would act injudiciously.
Judges in our system are bound to decide concrete cases, not abstract issues. Each case
comes to court based on particular facts and its decision should turn on those facts and the
governing law, stated and explained in light of the particular arguments the parties or their
representatives present. A judge sworn to decide impartially can offer no forecasts, no hints,
for that would show not only disregard for the specifics of the particular case, it would
display disdain for the entire judicial process.14
In her subsequent testimony, Judge Ginsburg sometimes declined to address or discuss in any way
an issue raised by a Senator’s question, in each instance referring to her earlier proclaimed
intention not to provide any “hints or forecasts” on how she might vote on an issue once on the
Court. In such a manner, for instance, she foreclosed any discussion of her views on issues raised
in the following two questions posed to her by Senator Larry Pressler of South Dakota:
Senator PRESSLER. The ninth circuit, in Washington Department of Ecology v. U.S.
Environmental Protection Agency, held that States could not regulate the activities of an
Indian tribe in operating a solid waste project, only the Federal Government can regulate the
operation of such facilities on Indian reservations. Do you have any thoughts on whether an
Indian tribe can be made to comply with environmental regulations of a State, whose
regulations are more stringent than those of the Federal Government?
Judge GINSBURG. This is a matter that might come before me, if this nomination is
confirmed. I would have to decide it in the context of a specific case, and I can't preview or
forecast my decision.
Senator PRESSLER. The Indian Gaming Act mandates that the States negotiate in good faith
with the tribes in establishing compacts regulating reservation gambling. The statute does not
define good faith nor set out much direction for what is required by either party. As you
know, Indian gaming has become a controversial issue in many States. What are your views
with respect to the ability of Congress to mandate that these two sovereigns negotiate in
good faith, without providing significant direction to either?
Judge GINSBURG. The Indian Gaming Act is a new and much litigated law. Cases
concerning that legislation may well come before me, so at this time I am not in a position to
comment on it.15
Likewise, Judge Ginsburg invoked her commitment to provide the Judiciary Committee with no
“hints or forecasts” when asked the following question by Senator Arlen Specter of Pennsylvania:

(...continued)
on CRS home page, at http://crs.gov/Supreme%20Court%20PDFs/documents/hrg_ginsburg.pdf
14 Ibid.
15 Ibid., pp. 236-237.
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Senator SPECTER. Judge Ginsburg, you responded to a question by Senator Kennedy
quoting your opposition to discrimination against gays, saying that you were against
discrimination as to all people. And I don't know to what extent you will comment about this
based on the answers you have given so far, but I want to ask the question.
In considering the discrimination in our society to a variety of categories of individuals—
disabled, gays, mentally ill—to what extent do you think it appropriate for the Court to use
the standard which you articulated as an advocate in favor of women's rights under the equal
protection clause, looking to the rights of various groups discriminated against as I have
particularized them? Would you think it appropriate for the Court to employ in general terms
the boldly dynamic interpretation, radically departing from the original understanding of the
14th amendment, which you wrote about in the Washington University Law Quarterly as
interpretation as to women's rights?
Judge GINSBURG. I have no comment on that, Senator Specter. I have said that these issues
will be coming before the Court. I will not say anything in this legislative chamber that will
hint or forecast how I will vote in cases involving those particular classifications.16
Earlier in the hearing, Judge Ginsburg was asked questions about the issue of a woman’s right to
have an abortion, a subject on which she had written as a law professor. To an initial question,
from Senator Howard Metzenbaum of Ohio, Judge Ginsburg largely confined herself to reciting
text from a Supreme Court opinion concerning abortion rights, while also stating it would be
inappropriate to comment on the ruling.
Senator METZENBAUM. After the Casey decision, some have questioned whether the right
to choose is still a fundamental constitutional right. In your view, does the Casey decision
stand for the proposition that the right to choose is a fundamental constitutional right?
Judge GINSBURG. The Court itself has said after Casey (1992)—I don't want to
misrepresent the Supreme Court, so I will read its own words. This is the statement of a
majority of the Supreme Court, including the dissenters in Casey. “The right to abortion is
one element of a more general right of privacy … or of Fourteenth Amendment liberty.”
That is the Court's most recent statement. It includes a citation to Roe v. Wade. The Court
has once again said that abortion is part of the concept of privacy or liberty under the 14th
amendment. What regulations will be permitted is certainly a matter likely to be before the
Court. Answers depend, in part, Senator, on the kind of record presented to the Court. It
would not be appropriate for me to go beyond the Court's recent reaffirmation that abortion
is a woman's right guaranteed by the 14th amendment; it is part of the liberty guaranteed by
the 14th amendment.17
Shortly thereafter, however, in response to questions from Senator Hank Brown of Colorado,
Judge Ginsburg spoke more directly about her views on abortion rights. She did so, when asked
to explain a view she had expressed, in past writings, that the equal protection clause in the
Fourteenth Amendment of the Constitution provides support for abortion rights.
Senator BROWN. I can see how the equal protection argument would apply to a policy that
interfered with her plan to bear the child. Could that argument be applied for someone who
wished to have the option of an abortion as well? Does it apply both to the decision to not
have an abortion, as well as the decision to have an abortion, to terminate the pregnancy?

16 Ibid., pp. 359-360.
17 Ibid., pp. 149-150.
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Judge GINSBURG. … you asked me about my thinking on equal protection versus
individual autonomy. My answer is that both are implicated. The decision whether or not to
bear a child is central to a woman's life, to her well-being and dignity. It is a decision she
must make for herself. When Government controls that decision for her, she is being treated
as less than a fully adult human responsible for her own choices.18
A few moments later, the dialog with Senator Brown continued as follows:
Judge GINSBURG. I will rest my answer on the Casey decision, which recognizes that it is
her body, her life, and men, to that extent, are not similarly situated. They don't bear the
child.
Senator BROWN. So the rights are not equal in this regard, because the interests are not
equal?
Judge GINSBURG. It is essential to woman's equality with man that she be the
decisionmaker, that her choice be controlling. If you impose restraints that impede her
choice, you are disadvantaging her because of her sex.19
During the next day of hearings, Judge Ginsburg was much more circumspect—and unwilling to
share her views—regarding the constitutionality of the death penalty. In response to a question
from Senator Orrin G. Hatch of Utah, Judge Ginsburg indicated that her reluctance to comment on
the issue was based largely on the fact that two death penalty cases were about to come before the
Court.
Senator HATCH. Do you believe, as Justices Brennan and Marshall did, that the death
penalty under all circumstances, even for whatever you would consider to be the most
heinous of crimes, is incompatible with the eighth amendment's prohibition against cruel and
unusual punishment?
Judge GINSBURG. Senator Hatch, let me say first that I appreciate your sensitivity to my
position and the line that I have tried to draw.
Senator HATCH. Sure.
Judge GINSBURG. Let me try to answer your question this way.
Senator HATCH. All right.
Judge GINSBURG. At least since 1972 and, if you date it from Furman, even earlier, the
Supreme Court, by large majorities, has rejected the position that the death penalty under any
and all circumstances is unconstitutional. I recognize that no judge on the Court currently
takes the position that the death penalty is unconstitutional under any and all circumstances.
All of the Justices on the Court have rejected that view. Many questions [are] left
unresolved. They are coming constantly before the Court. At least two are before the Court
next year. I can tell you that I do not have a closed mind on this subject. I don't think it
would be consistent with the line I have tried to hold to tell you that I will definitely accept

18 Ibid., p. 207.
19 Ibid.
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or definitely reject any position. I can tell you that I am well aware of the precedent, and I
have already expressed my views on the value of precedent.20
At the end of questioning by Senator Hatch, Judge Ginsburg contrasted her firmness in refusing
to discuss her views in this instance, with her willingness to speak more frankly the day before
about abortion issues.
Judge GINSBURG. Senator Hatch, I have tried to be totally candid with this committee.
Senator HATCH. You have. You have.
Judge GINSBURG. You asked a question. I was asked a lot about abortion yesterday. I
can't—
Senator HATCH. You were very forthright in talking about that.
Judge GINSBURG. I have written about it, I have spoken about it as a teacher since the
middle seventies. You know that teaching and appellate judging are more alike than any two
ways of working at the law.21
The Roberts Hearings, 2005
At the 2005 confirmation hearings for John G. Roberts Jr., on his nomination to be Chief Justice,
various questions were posed to the nominee concerning past Supreme Court rulings on women’s
abortion rights or his views on whether statutory limitations on abortion would be constitutional.
The nominee, in response, declined to discuss these cases, maintaining they involved issues likely
to come before the Court again.
Early in the hearings, for instance, the then-chairman of the Judiciary Committee, Senator
Specter, asked the nominee, “But there is no doctrinal basis erosion in Roe, is there, Judge
Roberts?” The following exchange occurred:
Judge ROBERTS. Well, I feel the need to stay away from a discussion of particular cases.
I’m happy to discuss the principles of stare decisis, and the Court has developed a series of
precedents on precedent, if you will. They have a number of cases talking about how this
principle should be applied. And as you emphasized, in Casey they focused on settled
expectations. They also looked at the workability and the erosion of precedents. The erosion
of precedent I think figured more prominently in the Court’s discussion in the Lawrence
case, for example, but it is one of the factors that is looked at on the other side of the balance.
Chairman SPECTER. Well, do you see any erosion of precedent as to Roe?
Judge ROBERTS. Again, I think I should stay away from discussions of particular issues
that are likely to come before the Court again. And in the area of abortion, there are cases on
the Court’s docket, of course. It is an issue that does come before the Court. So while I’m

20 Ibid., p. 263.
21 Ibid., pp. 264-265.
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happy to talk about stare decisis and the importance of precedent, I don’t think I should get
into the application of those principles in a particular area.22
In a few other instances, Senators in their questions noted Justice Ginsburg’s willingness, when
she was before the Judiciary Committee, to divulge her views concerning the Constitution and
abortion. In one instance, a Senator asked Judge Roberts why he was not willing to do the same.
The questioning in the first of these instances, by Senator Dianne Feinstein of California, and the
nominee’s responses distinguishing his situation from Justice Ginsburg’s at her hearing,
proceeded as follows:
Senator FEINSTEIN. Thank you. One other reading from Justice Ginsburg’s testimony.
‘‘Abortion prohibition by the State, however, controls women and denies them full
autonomy and full equality with men. That was the idea I tried to express in the lecture to
which you referred. The two strands, equality and autonomy, both figure in the full
portrayal.’’ Do you agree or disagree?
Judge ROBERTS. Well, I think Justice—then Judge Ginsburg felt at greater liberty to
discuss that precisely for the reason you noted, that she’d given a lecture on the subject.
Those are issues that come up again and again before the Court. Consistent with what I
understand the approach to have been of other nominees, I don’t think I should express a
view on that.23
A subsequent instance in which Justice Ginsburg was mentioned came during the following
questioning of the nominee by Senator Joseph R. Biden Jr. of Delaware:
Senator BIDEN. Now, I assumed you would answer it that way. Let me suggest to you also
that I asked—I asked Justice—or I am not sure whether I asked or one of our colleagues
asked Justice Ginsburg the question of whether or not it would be a ball or a strike if in fact a
State passed a law prohibiting abortion. And she said that’s a foul ball. They can’t do that.
And let me quote her. She said, …. quote: ‘‘Abortion prohibition by the State controls
women and denies them full autonomy and full equality with men.’’ It would be
unconstitutional. What is your view, according to the Ginsburg rule?
Judge ROBERTS. Well, that is in an area where I think I should not respond.
Senator BIDEN. Why?
Judge ROBERTS. Because—

22 U.S. Congress, Senate Committee on the Judiciary, Confirmation Hearing on the Nomination of John G. Roberts Jr.
To Be Chief Justice of the United States, 109th Cong., 1st sess., September 12-15, 2005 (Washington: GPO, 2005), p.
142, accessed on CRS home page, at http://crs.gov/Supreme%20Court%20PDFs/documents/robertsnomation.pdf.
23 Ibid., p. 224. Shortly thereafter, Senator Feinstein, continuing her line of questioning, asked Judge Roberts, “But do
you believe then that the Federal Court should become involved in end-of-life decisions.” The nomine replied:
Well, Senator, that is exactly one of the questions that’s before the Court, and I can’t answer that in
the abstract. I have to answer that on the basis of the parties’ arguments, on the basis of the record
in the case, on the basis of the precedents. An abstract opinion that would prejudge that case would
be inappropriate for a nominee to express.
Ibid., p. 228.

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Senator BIDEN. You said you would abide by the Ginsburg rule.
Judge ROBERTS. Then-Judge Ginsburg and now Justice Ginsburg explained that she
thought she was at greater liberty to discuss her writings. She’d written extensively on that
area and I think that’s why she felt at greater liberty to talk about those cases. In other areas,
where she had not written, her response was that it was inappropriate to comment. In
particular, I remember her response in the Mayer and the Harris cases. She said those are the
Court’s precedents; I have no agenda to overrule them, and I will leave it at that. And I think
that’s important to adhere to that. Let me explain very briefly why. It’s because if these
questions come before me, either on the court on which I now sit or, if I am confirmed, on
the Supreme Court, I need to decide those questions with an open mind on the basis of the
arguments presented, on the basis of the record presented in the case, and on the basis of the
rule of law, including the precedents of the Court, and not on the basis of any commitments
during the confirmation process. The litigants have a right to expect that of the judges or
Justices before whom they appear.24
The Alito Hearings, 2006
At the 2006 confirmation hearings for Supreme Court nominee Samuel A. Alito, various
questions posed to the nominee sought out his views on current legal or constitutional issues.
Such questions, among other things, asked if he agreed with particular Supreme Court rulings,
continued to subscribe to views expressed in past writings which were critical of certain Court
decisions, or considered certain rulings of the Court “settled law.” The nominee typically declined
to comment on these cases. However, at the outset of some responses, he did not state why he
could not address the questions raised, but instead began by discussing the legal or constitutional
framework for the issues and then the kind of information he would need or factors he would
have to consider, before being able to arrive at a conclusion.25 He sometimes offered another
reason not to comment on an issue (much the same as that offered by nominees Ginsburg and
Roberts), namely that the issue was in litigation or could reach the Court in a future case.
Judge Alito, for instance, responded with a detailed framing of the issue in the following question
and answer with the then-ranking member of the Judiciary Committee, Senator Patrick J. Leahy
of Vermont.
Senator LEAHY. Do you believe the President can circumvent the FISA law, and bypass the
FISA court to conduct warrantless spying on Americans?
Judge ALITO. The President has to comply with the Fourth Amendment and the President
has to comply with the statutes that are passed. This is an issue I was speaking about with
Chairman Specter that I think is very likely to result in litigation in the Federal courts. It
could be in my court. It certainly could get to the Supreme Court and there may be statutory
issues involved—the meaning of the provision of FISA that you mentioned, the meaning
certainly of the authorization for the use of military force—and those would have to be
resolved. And in order to resolve them, I would have to know the arguments that are made

24 Ibid., pp. 186-187.
25 One news report on the Alito confirmation hearings observed noted, “Unlike the testimony of John G. Roberts Jr. ,
who had often declined to answer questions on various grounds, among them that certain issues might come before him
as chief justice or that his older writings did not necessarily reflect his current views, Judge Alito’s default impulse
frequently seemed to be to try to give a direct response.” Adam Liptak and Adam Nagourney, “Judge Alito the Witness
Proves a Powerful Match for Senate Questioners,” The New York Times, January 11, 2006, p. 27.
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by the contending parties. On what basis is it claimed that there is a violation? On what basis
would the President claim that what occurred fell within the authorization of the
authorization for the use of military force? And then if you got beyond that, there could be
constitutional questions about the Fourth Amendment, whether it was a violation of the
Fourth Amendment, whether it was the valid exercise of Executive power.26
To a question from Senator Russell D. Feingold of Wisconsin, Judge Alito again framed in detail
the issues that he believed were raised. He then signaled, however, that he would not state his
views on those issues, which he said might “well result in litigation.”
Senator FEINGOLD. Then let us take a more concrete example. Does the President, in your
opinion, have the authority, acting as Commander in Chief, to authorize warrantless searches
of Americans’ homes and wiretaps of their conversations in violation of the criminal and
Foreign Intelligence Surveillance statutes of this country?
Judge ALITO. That’s the issue that’s been framed by the developments that have been in the
news over the past few weeks, and as I understand the situation, it can involve statutory
questions, the interpretation of FISA, and the provision of FISA that says that no wiretapping
may be done except as authorized by FISA or otherwise authorized by law, and the meaning
of the authorization for the use of military force, and then constitutional questions. And those
would be—those are issues, as I said this morning, that may well result in litigation. They
could come before me on the Court of Appeals for the Third Circuit. They certainly could
come before the Supreme Court. And before—those are weighty issues involving two of the
most important considerations that can arise in constitutional law, the protection of a country
and the protection of people’s fundamental rights, and I would have to know the specifics
and the arguments that were made.27
Later, Senator Charles E. Schumer of New York asked Judge Alito if he still subscribed to a
controversial view that he had expressed more than 20 years earlier. Judge Alito explained that he
no longer did. He then framed certain fundamental steps he would have to take in addressing the
issue if it came before him as a judge.
Senator SCHUMER. Judge Alito, in 1985 you wrote that the Constitution—these are your
words—does not protect a right to an abortion. And you said to Senator Specter ... that those
words accurately reflected your view at the time. Now let me ask you, do they accurately
reflect your view today? Do you stand by that statement? Do you disavow it? Do you
embrace it? It is OK if you distance yourself from it and it is fine if you embrace it. We just
want to know your view.
Judge ALITO. Senator, it was an accurate statement of my views at the time. That was in
1985, and I made it from my vantage point as an attorney in the Solicitor General’s Office,
but it was an expression of what I thought at that time. If the issue were to come before me
as a judge, if I am confirmed and if this issue were to come up, the first question that would
have to be addressed is the question of stare decisis, which I have discussed earlier, and it’s a
very important doctrine and that was the starting point and the ending point of the joint
opinion in Casey. And then if I were to get beyond that, if a court were to get beyond the

26 U.S. Congress, Senate Committee on the Judiciary, Confirmation Hearing on the Nomination of Samuel A. Alito Jr.
To Be an Associate Justice of the Supreme Court of the United States, 109th Cong., 2nd sess., January 9-13, 2006
(Washington: GPO, 2006), p. 329, accessed on CRS home page, at http://www.access.gpo.gov/congress/senate/pdf/
109hrg/25429.pdf.
27 Ibid., p. 412.
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issue of stare decisis, then I would have to go through the whole judicial decision-making
process before reaching a conclusion.28
Shortly thereafter, Senator Schumer asked Judge Alito why he was unwilling to share his views
concerning abortion rights under the Constitution as forthrightly as he was to answer a question
about free speech under the First Amendment.
Senator SCHUMER. Does the Constitution protect the right to free speech?
Judge ALITO. Certainly, it does. That is in the First Amendment.
Senator SCHUMER. So why can’t you answer the question of does the Constitution protect
the right to an abortion the same way, without talking about stare decisis, without talking
about cases, et cetera?
Judge ALITO. Because answering the question of whether the Constitution provides a right
to free speech is simply responding to whether there is language in the First Amendment that
says that the freedom of speech and freedom of the press can’t be abridged. Asking about the
issue of abortion has to do with the interpretation of certain provisions of the Constitution.29
The possibility of an issue coming before the Supreme Court was cited again by Judge Alito in
declining, in response to a question from Senator Richard J. Durbin of Illinois, to discuss his
views about the issue. “Why,” Senator Durbin asked, can you say unequivocally that you find
constitutional support for Griswold, unequivocally you find constitutional support for Brown, but
cannot bring yourself to say that you find constitutional support for a woman’s right to choose?”
Judge Alito prefaced his reply to Senator Durbin with short narratives summarizing the historical
context and constitutional bases for the Supreme Court rulings in Griswold and Brown v. Board of
Education. He then distinguished Griswold (and presumably, if asked, would also have
distinguished Brown) from the abortion rights issues addressed in Roe v. Wade:
Griswold concerned the marital right to privacy, and when the decision was handed down, it
was written by Justice Douglas, and he based that on his theories of—his theory of
emanations and penumbras from various constitutional provisions, the Ninth Amendment
and the Fourth Amendment, and a variety of others, but it has been understood in later cases
as based on the Due Process Clause of the 14th Amendment, which says that no person shall
be denied due process—shall be denied liberty without due process of law. And that’s my
understanding of it. And the issue that was involved in Griswold, the possession of
contraceptives by married people, is not an issue that is likely to come before the courts
again. It’s not likely to come before the Third Circuit, it’s not likely to come before the
Supreme Court, so I feel an ability to comment, a greater ability to comment on that than I do
on an issue that is involved in litigation.
Senator DURBIN. But let me just ask you this. John Roberts said that Roe v. Wade is the
settled law of the land. Do you believe it is the settled law of the land?
Judge ALITO. Roe v. Wade is an important precedent of the Supreme Court. It was decided
in 1973, so it has been on the books for a long time. It has been challenged on a number of
occasions, and I discussed those yesterday, and the Supreme Court has reaffirmed the

28 Ibid., p. 432.
29 Ibid., p. 434.
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decision, sometimes on the merits, sometimes in Casey based on stare decisis, and I think
that when a decision is challenged and it is reaffirmed that strengthens its value as stare
decisis for at least two reasons. First of all, the more often a decision is reaffirmed, the more
people tend to rely on it, and second, I think stare decisis reflects the view that there is
wisdom embedded in decisions that have been made by prior Justices who take the same
oath and are scholars and are conscientious, and when they examine a question and they
reach a conclusion, I think that’s entitled to considerable respect, and of course, the more
times that happens, the more respect the decision is entitled to, and that’s my view of that. So
it is a very important precedent that—
Senator DURBIN. Is it the settled law of the land?
Judge ALITO. It is a—if settled means that it can’t be re-examined, then that’s one thing. If
settled means that it is a precedent that is entitled to respect as stare decisis, and all of the
factors that I’ve mentioned come into play, including the reaffirmation and all of that, then it
is a precedent that is protected, entitled to respect under the doctrine of stare decisis in that
way.
Senator DURBIN. How do you see it?
Judge ALITO. I have explained, Senator, as best I can how I see it. It is a precedent that has
now been on the books for several decades. It has been challenged. It has been reaffirmed,
but it is an issue that is involved in litigation now at all levels. There is an abortion case
before the Supreme Court this term. There are abortion cases in the lower courts. I’ve sat on
three of them on the Court of Appeals for the Third Circuit. I’m sure there are others in other
courts of appeals, or working their way toward the courts of appeals right now, so it’s an
issue that is involved in a considerable amount of litigation that is going on.30
The Sotomayor Hearings, 2009
At the 2009 confirmation hearings for Supreme Court nominee Sonia Sotomayor, Senators in
some instances directly asked her for her views on current legal or constitutional controversies.
More of the questions, however, appeared to ask the nominee about opinions she had written or
concurred with as a U.S. appellate court judge or to explain some of the more controversial
remarks she had made over the years in published articles, speeches, or seminars. Like those of
the previous Supreme Court nominee, Samuel A. Alito Jr., the responses of Judge Sotomayor
about legal or constitutional issues typically did not, at the outset, decline to address the issues
raised. Instead, her responses usually discussed relevant Court precedents, without, however,
offering her personal views on the issues involved. Sometimes her replies also emphasized her
need, before being able to form an opinion about a case, to see the legal briefs and hear the oral
arguments that litigants in the case would present to the Court, as well as her personal
commitment to “apply the law” to each case impartially and with an open mind.31

30 Ibid., pp. 454-455.
31 One news analysis described Judge Sotomayor, at her confirmation hearings, as having “expressed little of her
thought process about interpreting the Constitution and statutes, and avoided saying what she really thought about the
most pressing issues likely to come before the Supreme Court. Instead, she parried questions by describing precedents
while declining to weigh in on unsettled legal questions, by saying she had to keep an open mind about potential future
cases, and by almost mechanically reciting basic propositions with a controlled and deliberate delivery.” Charles
Savage, “A Nominee on Display, but Not Her Views,” The New York Times, July 17, 2009, p. A11.
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In the following instance, for example, Judge Sotomayor declined, when invited to do so by
Senator Chuck Grassley of Iowa, to comment on a recent controversial Supreme Court decision.
She acknowledged that the ruling was controversial (as she noted it had prompted negative
reactions in various state legislatures), but also said it was a precedent, on which she could not
comment and which she indicated she would be in a position to evaluate only if the Court
revisited the issue.
Senator GRASSLEY. Do you believe that the Supreme Court overstepped their
constitutional authorities when they went beyond the words of the Constitution, in other
words, to the word purpose, and thus expanded the ability of government to take an
individual's private property? Because I think everybody believes that Kelo was an expansion
of previous precedent there.
Judge SOTOMAYOR. I know that there are many litigants who have expressed that view.
And, in fact, there have been many state legislators that have passed state legislation not
permitting state governments to take in the situation that the Supreme Court approved of in
Kelo. The question of whether the Supreme Court overstepped the Constitution, as I've
indicated, the Court, at least my understanding of the majority's opinion, believed and
explained why it thought not.
I have to accept because it is precedent that as precedent. And so, I can't comment further
than to say that I understand the questions and I understand what state legislatures have done
and would have to await another situation, or the Court would, to apply the holding in that
case.32
The next day, again in response to a question from Senator Grassley, Judge Sotomayor cited
judicial ethics rules as preventing her from commenting on an issue that could come before the
Court.
Senator GRASSLEY. Do you agree with federal courts, which have held that the Defense of
Marriage Act does not violate the full faith and credit clause and is an appropriate exercise of
Congress's power to regulate conflicts between laws of different states?
Judge SOTOMAYOR. … the ABA rules would not permit me to comment on the merits of a
case that's pending or impending before the Supreme Court. The Supreme Court has not
addressed the constitutionality of that statute. And to the extent that lower courts have
addressed it and made holdings, it is an impending case that could come before the Supreme
Court, so I can't comment on the merits of that case. 33
At recent Supreme Court hearings, Senators sometimes have asked nominees whether they
believed a particular Supreme Court ruling was “settled law” (with the basic holding in the ruling
likely never to be reconsidered by the Court). In response to such an inquiry from Senator Herb
Kohl of Wisconsin, Judge Sotomayor noted that the ruling in question had been reaffirmed by the
Court in a later ruling, which she said, without further comment, was the Court’s “settled
interpretation of what the core holding is. ”

32 “Senate Judiciary Committee Holds Hearing on the Nomination of Judge Sonia Sotomayor to be an Associate
Justice of the U.S. Supreme Court,” CQ Congressional Transcripts, July 14, 2009, at http://www.CQ.com. (no page
numbering supplied). (Hereafter cited as July 14, 2009 Sotomayor Transcripts.)
33 “Senate Judiciary Committee Holds Hearing on the Nomination of Judge Sonia Sotomayor to be an Associate Justice
of the U.S. Supreme Court,” CQ Congressional Transcripts, July 15, 2009, at http://www.CQ.com, (no page
numbering supplied).
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Senator KOHL: All right. Judge, the court's ruling about the right to privacy in Griswold laid
the foundation for Roe v. Wade. In your opinion, is Roe settled law?
Judge SOTOMAYOR: The court's decision in Planned Parenthood v. Casey reaffirmed the
court holding of Roe. That is the precedent of the court and settled, in terms of the holding of
the court.
Senator KOHL: Do you agree with Justices Souter, O'Connor, and Kennedy in their opinion
in Casey, which reaffirmed the core holding in Roe?
Judge SOTOMAYOR: As I said, I—Casey reaffirmed the holding in Roe. That is the
Supreme Court's settled interpretation of what the core holding is and its reaffirmance of it.34
Another possible means of ascertaining a nominee’s views on legal and constitutional issues are
questions asking which particular jurists or legal scholars the nominee most admires. Judge
Sotomayor declined to respond to the following question of this nature from Senator Kohl:
Senator KOHL: Judge, which current one or two Supreme Court justices do you most
identify with and which ones might we expect you to be agreeing with most of the time in
the event that you are confirmed?
Judge SOTOMAYOR: Senator, to suggest that I admire one of the sitting Supreme Court
justices would suggest that I think of myself as a clone of one of the justices. I don't.
Each one of them bring integrity, their sense of respect for the law, and their sense of their
best efforts and hard work to come to the decisions they think the law requires.
Going further than that would put me in the position of suggesting that by picking one
justice, I was disagreeing or criticizing another. And I don't wish to do that. I wish to
describe just myself.
I'm a judge who believes that the facts drive the law and the conclusion that the law will
apply to that case. And when I say “drives the law,” I mean determines how the law will
apply in that individual case.35
In some instances during the Sotomayor hearings, a line of questioning started with an inquiry
about the soundness of a particular judicial decision rendered by the nominee, followed by
questions into the nominee’s views about current issues related to that decision. This, for instance,
was the thrust of the following series of questions by Senator Hatch concerning the Second
Amendment. In reply, the nominee explained her decision, but declined to comment on the
current issue.
Senator HATCH. Now, in the 2004 case entitled United States v. Sanchez Villar, you
handled the Second Amendment issue in a short footnote. You cited the second circuit's
decision in United States v. Toner for the proposition that the right to possess a gun is not a
fundamental right.
Toner, in turn, relied on the Supreme Court's decision in United States v. Miller. Last year, in
District of Columbia v. Heller, the Supreme Court examined Miller and concluded that,

34 July 14, 2009, Sotomayor Transcripts.
35 Ibid.
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quote, “The case did not even purport to be a thorough examination of the Second
Amendment,” unquote, and that Miller provided, quote, “no explanation of the content of the
right,” unquote.
You're familiar with that.
Judge SOTOMAYOR. I am, sir.
Senator HATCH: OK. So let me ask you, doesn't the Supreme Court's treatment of Miller at
least cast doubts on whether relying on Miller, as the second circuit has done, for this
proposition is proper?
Judge SOTOMAYOR. The issue...
Senator HATCH. Remember, I'm saying at least cast doubts.
Judge SOTOMAYOR. Well, that is what I believe Justice Scalia implied in his footnote 23,
but he acknowledged that the issue of whether the right, as understood in Supreme Court
jurisprudence, was fundamental.
It's not that I considered it un-fundamental, but that the Supreme Court didn't consider it
fundamental so as to be incorporated against the state.
Senator HATCH. Well, it didn't decide that point.
Judge SOTOMAYOR. Well, it not only didn't decide it, but I understood Justice Scalia to be
recognizing that the court's precedent had held it was not.
His opinion with respect to the application of the Second Amendment to government
regulation was a different inquiry and a different inquiry as to the meaning of U.S. v. Miller
with respect to that issue.
Senator HATCH. Well, if Heller had already been decided, would you have addressed that
issue differently than Heller or would you take the position that it—that the doctrine of
incorporation is inevitable with regard to state—state issues?
Judge SOTOMAYOR. That's the very question that the Supreme Court is more than likely to
be...
Senator HATCH. To decide.
Judge SOTOMAYOR. ... considering. There are three cases addressing this issue, at least, I
should say, three cases...
Senator HATCH. Right.
Judge SOTOMAYOR. ... addressing this issue in the circuit courts. And so it's not a question
that I can address. As I said, I bring an open mind to every case.36

36 Ibid.
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Elena Kagan’s Position on Questioning Supreme
Court Nominees
Comments Expressed in 1995 Law Review Article
In 1995, while a University of Chicago law professor, Elena Kagan wrote a book review that in
large part was an essay critical of the manner in which the Senate Judiciary Committee
questioned Supreme Court nominees at their confirmation hearings.37 Her essay reviewed, and
took general issue with themes in, a book by Yale law professor Stephen L. Carter entitled The
Confirmation Mess.38 Carter’s book was, among other things, highly critical of the 1987
confirmation hearings for Supreme Court nominee Robert H. Bork, especially of Senators’
questions at the hearings that sought to elicit the nominee’s views on controversial issues and how
he might vote on controversial cases if confirmed.
Summarized Themes of Carter’s Book
According to The Confirmation Mess, Ms. Kagan wrote, examination of a nominee’s views on
constitutional issues “gives the public too great a chance to influence how the judiciary will
decide these issues, precisely by enabling the public to reject a nominee on grounds of
substance.”39 Such an inquiry, noted Kagan in further summarizing Carter’s arguments,
“undermines the eventual Justice’s ability (and the public’s belief in the Justice’s ability) to decide
cases impartially, based on the facts at issue and the argument presented, rather than on the
Justice’s prior views or commitments.” Carter, she also wrote, “advocates a return to confirmation
proceedings that focus on a nominee’s technical qualifications—in other words, his legal aptitude,
skills, and experience.” As for the possible nominee, “otherwise qualified, who wished to
overturn a case like Brown v. Board,” she noted, “Carter urges, as a safeguard against extremism
of this kind, an inquiry into whether a nominee subscribes to the ‘firm moral consensus’ of
society.’”40
Praised the Bork Hearings, Criticized Others That Followed
Ms. Kagan, however, disagreed with Carter’s view that that the Judiciary Committee’s
questioning of Robert Bork was too probing. Further, she was critical of subsequent Supreme
Court confirmation hearings for generally failing, through committee questioning, to elicit a
nominee’s views on constitutional issues. The Bork hearings, she wrote approvingly,
… presented to the public a serious discussion of the meaning of the Constitution, the role of
the Court, and the views of the nominee; that discussion at once educated the public and
allowed it to determine whether the nominee would move the Court in the proper direction.
Subsequent hearings have presented to the public a vapid and hollow charade, in which
repetition of platitudes has replace discussion of viewpoints and personal anecdotes have

37 Kagan, “Confirmation Messes.”
38 Stephen L. Carter, The Confirmation Mess (New York: Basic Books, 1994), 252 pp.
39 Kagan, “Confirmation Messes,” p. 922.
40 Ibid.
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supplanted legal analysis. Such hearings serve little educative functions, except perhaps to
reinforce lessons of cynicism that citizens often glean from government. Neither can such
hearings contribute toward an evaluation of the Court and in a determination whether the
nominee would make it a better or worse institution.41
Said Concern Should Be with How Nominee Would Influence Court
Ms. Kagan said that that what “must guide” a decision on whether to confirm a person to be a
Justice is a Senator’s “vision of the Court and an understanding of the way a nominee would
influence its behavior.” This vision, she continued, “largely consists of a view as to the kinds of
decisions the Court should issue. The critical inquiry as to any individual similarly concerns the
votes she would cast, the perspective she would add (or argument), and the direction in which she
would move the institution.”42
Advocated Exploration of Nominee’s ‘Substantive Views’
The Senate’s confirmation hearings, Ms. Kagan wrote,
… ought to focus on substantive issues; the Senate ought to view the hearings an opportunity
to gain knowledge and promote public understanding of what the nominee believes the Court
should do and how she would affect its conduct.…. Open exploration of the nominee’s
substantive views, that is, enables senators and their constituents to engage in a focused
discussion of constitutional values to ascertain the values held by the nominee, and to
evaluate whether the nominee possesses the values that the Supreme Court most urgently
requires.
The kind of inquiry that would contribute most to understanding and evaluating a nominee is
the kind Carter would forbid: discussion first, of the nominee’s broad judicial philosophy
and, second, of her views on particular constitutional issues. By ‘judicial philosophy’ … , I
mean such things as the judge’s understanding of the role of courts in our society, of the
nature of and values embodied in our Constitution, and of the proper tools and techniques of
interpretation, both constitutional and statutory.43
A second aspect of her preferred approach to inquiry, Kagan continued, would be “the insistence
on seeing how theory works in practice by evoking a nominee’s comments on particular issues—
involving privacy rights, free speech, race and gender discrimination, and so forth—that the Court
regularly faces.”44
Said Nominees with Little Publication Record Would No Longer Have
Advantage
“If questioning on substantive positions ever were to become the norm,” Ms. Kagan wrote, “the
nominees lacking a publication record would have no automatic advantage over a highly prolific

41 Ibid., p. 941.
42 Ibid., p. 934.
43 Ibid., p. 935.
44 Ibid., p. 936.
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author. The success of a nomination in each case would depend on the nominee’s views, whether
or not previously expressed in a law review or federal reporter.”45
Made Distinction Between Expressing Views on Issues and Making
Commitments
Ms. Kagan emphasized she did “not mean to argue here that the President and the Senate may
ask, and a nominee (or potential nominee) must answer, any question whatsoever.” Some kinds of
questions, she said, “do pose a threat to the integrity of the judiciary”—for example, if a Senator
“asked a nominee to commit herself to voting a certain way on a case that the court had accepted
for argument. We would object ... to this question, on the ground that any commitment of this
kind, even though unenforceable, would place pressure on the judge (independent of the merits of
the case) to rule in a certain manner.”46 She then distinguished a commitment of this sort from a
nominee’s expressing a viewpoint:
There is a difference between a prohibition on making a commitment (whether explicitly or
implicitly) and a prohibition on stating a current view as to a disputed legal question. The
most recent drafters of the Model Code of Judicial Conduct acknowledged just this
distinction when they adopted the former prohibition in place of the latter for candidates for
judicial office. Of course, there will be hard cases—cases in which reasonable people may
disagree as to whether a nominee’s statement of opinion manifests a settled intent to decide
in a particular manner a particular case likely to come before the court. But many cases
precede the hard ones: a nominee can say a great, great deal before making a statement that,
under this standard, nears the improper. A nominee, as I have indicated before, usually can
comment on judicial methodology, on prior caselaw, on hypothetical cases, on general issues
like affirmative action or abortion. To make this more concrete, a nominee can do … well,
what Robert Bork did. 47
Statements Made in 2009 as Solicitor General Nominee
In February 2009, Kagan testified before the Senate Judiciary Committee on her nomination to be
Solicitor General of the United States.48 At the hearing, a committee member, Senator Hatch,
referred to Ms. Kagan’s 1995 article that reviewed Stephen Carter’s book, The Confirmation
Mess. Addressing Ms. Kagan, Senator Hatch stated, “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.” How, he then asked, “do you square this with
the principle that judges must be impartial and with the oath that they take to provide justice
without respect to persons? 49 The nominee replied, “I am not sure that sitting here today I would
agree with that statement.” She added:

45 Ibid., p. 937.
46 Ibid., p. 939.
47 Ibid., p. 939-940.
48 See U.S. Congress, Senate Committee on the Judiciary, Confirmation Hearings on the Nominations of Thomas
Perrelli Nominee To Be Associate Attorney General of the United States and Elena Kagan Nominee To Be Solicitor
General of the United States, 111th Cong., 1st sess., February 10, 2009 (Washington: GPO, 2009), 295 pp.
49 Ibid., p. 118.
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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 was not understanding completely what the judicial nominee
in front of me meant and what she thought. But I think that you are 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 is judicial or
otherwise, has to be protective of certain kinds of interests. And you named the
countervailing ones.50
After the hearings, Senator Specter provided Ms. Kagan with some 50 written questions. In an
introduction to his questions, Senator Specter recalled Ms. Kagan’s reply to Senator Hatch, at the
confirmation hearings, when the latter asked the nominee about her past writing in which she had
favored a Senate inquiry into a Supreme Court nominee’s views on particular constitutional
issues. Senator Specter noted that, in reply to Senator Hatch, she stated that although she was “not
sure that, sitting here today, I would agree with” her earlier statement, she had agreed that there
“has to be a balance” and that the “Senate has to get the information that it needs ... [from] the
nominee, for any particular position—whether it’s judicial or otherwise.”51 In light of that
acknowledgement, Senator Specter said, he requested Ms. Kagan’s views on the constitutional
issues he had provided her.
To Senator Specter’s introductory note, Ms. Kagan wrote, at the start of her responses to the
Senator’s questions, “I appreciate this comment and stand by what I said at my hearing. I would
note only that the information the Senate needs is related to the position that the nominee hopes to
perform.”52 Subsequently, the nominee, in response to some of the written questions, demurred
when asked for her views on certain issues. For instance, to questions asking if she supported the
death penalty, or if she believed that penalty is constitutional, Ms. Kagan stated she had
“refrained from providing my personal opinions (except where I previously have disclosed them),
both because these opinions will play no part in my official decisions and because such statement
of opinion might be used to undermine the interests of the United States in litigation.”53
Similarly, in response to a question asking whether she agreed with a particular Supreme Court
decision involving the death penalty, she replied “I do not think it comports with the
responsibilities and role of the Solicitor General for me to say whether I view particular decisions
as wrongly decided or whether I agree with criticisms of those decision.”54 Likewise, she
expressly declined to state her views in response to four additional questions, each asking if she
thought that a particular Supreme Court decision had been correctly decided. She explained:
For questions 10 through 13, my answer is the same. As noted earlier, the Solicitor General
owes important responsibilities to the Court, one of which is respect for its precedents and
for the general principle of stare decisis. I do not think it would comport with this
responsibility to state my own views of whether particular Supreme court decision were
rightly decided. All of these cases are now settled law, and as such, are entitled to my respect
as the nominee for Solicitor General. In that position, I would not frequently or lightly ask

50 Ibid.
51 Ibid., p. 165.
52 “So, for example,” she added, “information that is relevant to one executive branch position may not be relevant to
another, and information that is relevant to a judicial position may not be relevant to either (or vice versa).” Ibid.
53 Ibid.
54 Ibid., p. 166.
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the Court to reverse one of its precedents, and I certainly would not do so because I thought
the case wrongly decided.55
Ms. Kagan’s responses prompted a follow-up letter from Senator Specter, in which he expressed
“dissatisfaction with many of the answers you provided to the Committee in response to my
written questions. ” Senator Specter commented in his letter that Ms. Kagan, in her book review
of The Confirmation Mess, had made “a compelling case for senatorial inquiry into a nominee’s
judicial philosophy and her views on specific issues.” She further had asserted, Senator Specter
continued, that the Senate’s inquiry into the views of executive nominees, as compared with
Supreme Court nominees, should be even more thorough. He quoted Ms. Kagan, from the article,
as stating that “the Senate ought to inquire into the views and policies of nominees to the
executive branch, for whom ‘independence’ is no virtue.” Senator Specter said that he agreed
with “the foregoing assessment, and, therefore am puzzled by your responses, which do not
provide clear answers concerning important constitutional and legal issues.”56
Ms. Kagan, in turn, sent to Senator Specter a letter of response, in which she expressed regret that
the Senator believed some of her answers to be inadequate. She stated “how much I respect the
Senate and its institutional role in the nominations process.” Senators, she said, as members “of a
co-equal branch of government charged with the ‘advice and consent’ function ... have a right
and, indeed, a duty to seek necessary information about how a nominee will perform in her office.
By the same token,” she continued, “each nominee has a responsibility to address senatorial
inquiries as fully and candidly as possible.”57
With that said, however, Ms. Kagan asserted that
… some questions—and these will be different for different positions—cannot be answered
consistently with the responsible performance of the job the nominee hopes to undertake. For
that reason, some balance is appropriate, as I remarked to Senator Hatch at my nomination
hearing and as you quoted approvingly in the introduction to your written questions. 58
Ms. Kagan continued that she had “endeavored to strike that proper balance” in responding to the
written questions from Senator Specter and from other Senators. She maintained she had
answered in full every question relating to the Solicitor General’s role and responsibilities,
including how she would approach specific statutes and areas of law:
I also answered in detail every question relating to my own professional career, including my
relatively extensive writings and speeches. Finally, I answered many questions relating to
general legal issues. In short, I did my best to provide you and the rest of the Committee with
a good sense of who I am and of how I would approach the role of Solicitor General. The
only matters I did no address substantively were my personal views (if any) regarding
specific Supreme Court cases and constitutional doctrines. These personal views would play
no role in my performance of the job, which is to represent the interests of the United States;
and expressing them (whether as a nominee or, if I am confirmed, as Solicitor General)
might undermine my and the Office’s effectiveness in a variety of ways.59

55 Ibid., p. 171.
56 Ibid., p. 177.
57 Ibid., p. 179.
58 Ibid.
59 Ibid.
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Observations on Whether Kagan Will, or Should, Express Views on
Current Issues at Her Own Supreme Court Confirmation Hearing
President Barack Obama’s announcement on May 10, 2010, that he had selected Solicitor Elena
Kagan as his nominee to succeed retiring Justice John Paul Stevens almost immediately raised the
question of how responsive she would, or should, be to questions posed to her at her confirmation
hearings before the Senate Judiciary Committee. Upon learning of Ms.Kagan’s selection, a
member of the Judiciary Committee, Senator Kohl, issued the following statement:
In light of her critique of Supreme Court confirmation hearings as often times a “vapid and
hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and
personal anecdotes have supplanted legal analysis,” we certainly do hope that she will
provide us with substantive and meaningful insight into the kind of Supreme Court Justice
she would be.60
For its part, however, the Obama Administration immediately projected a different picture of how
Elena Kagan now viewed the dynamics of a Supreme Court confirmation hearing. A news blog,
on the day of the Kagan selection announcement, reported that an Administration official had told
reporters that Ms. Kagan no longer held the opinion, as she had written in 1995, that the
confirmation process had become a “charade” because nominees were not answering direct
questions. Of Ms. Kagan’s earlier-held opinion, the report quoted Ronald A. Klain, chief of staff
to the Vice President, as telling reporters the following:
She was asked about it and said that both the passage of time and her perspective as a
nominee had given her a new appreciation and respect for the difficulty of being a nominee,
and the need to answer questions carefully.
You will see before the committee that she walks that line in a very appropriate way. She
will be forthcoming with the committee. It will be a robust and engaging conversation about
the law, but she will obviously also respect the conventions about how far a nominee should
or shouldn’t go in answering about specific legal questions.61
As to whether Ms. Kagan should be responsive to hearings questions concerning her views on
controversial questions, Senators have expressed different opinions. One member of the Judiciary
Committee, Senator Specter, has already informed Ms. Kagan, in a letter, of his intention to ask
her at the hearings about certain court opinions and whether she agrees with them.62 Another

60 “Statement of U.S. Senator Herb Kohl on the Nomination of Solicitor General Elena Kagan to the Supreme Court,” ,
News Release, May 10, 2010, accessed at http://kohl.senate.gov/newsroom/pressrelease.cfm?
customel_dataPageID_1464=3680
61 John Ward, “Elena Kagan No Longer Thinks Supreme Court Nominees Should Have to Answer Direct Questions,”
The Daily Caller, May 10, 2010, accessed at http://dailycaller.com.
62 Senator Specter’s letter, a news release stated, addressed “several important cases in the federal courts that Senator
Specter previously discussed with Solicitor General Kagan.” Questions posed to her in the letter included “whether you
agree with Justice Ginsburg’s dissenting opinion in Garamendi (joined by Justices Stevens, Scalia and Thomas) that an
Executive-branch foreign policy not formalized in a treaty or an executive agreement cannot preempt state law; what
considerations you would bring to bear in deciding whether to vote to grant certiorari in this case, if confirmed ... [and]
whether you would have voted to grant certiorari in the 9/11 Litigation had you been sitting on the Court “Specter
Outlines Questions for Elena Kagan,” News Release, May 26, 2010, accessed at http://specter.senate.gov/public/
index.cfm?FuseAction=NewsRoom.NewsReleases&ContentRecord_id=d577394f-93d3-f06e-1ab8-b33b56f70a6c&
Region_id=&Issue_id=.
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Senator, not on the committee, Senator John Thune, of South Dakota, reportedly has said, “Given
that Ms. Kagan does not have a judicial record, it will be especially important for Senators to
inquire as to her views on the Constitution and the role of the Court.”63 A similar view was also
reportedly expressed by another Senator, who is on the Judiciary Committee, Senator John
Cornyn of Texas. He has said that Ms. Kagan “failed to answer many questions posed by Senators
prior to her confirmation as Solicitor General. This failure led many Members to oppose her
nomination. I hope that she will now more willingly respond to reasonable and relevant
questions.”64
A different opinion, more supportive of Ms. Kagan taking a guarded approach in responding to
committee questions, has reportedly been expressed by another committee member, Senator
Dianne Feinstein of California. A news story reported that, during Ms. Kagan’s private visit in the
Senator’s office, the Senator said she raised Ms. Kagan’s criticisms of the testimony of previous
Supreme Court nominees. “What I said is,” the story quoted the Senator, “‘I trust you are going to
be a paragon of exactly the opposite of what you wrote about.”65 Similarly, Justice John Paul
Stevens, whom Ms. Kagan has been nominated to succeed, has reportedly expressed the opinion
that Supreme Court nominees, at confirmation hearings, should keep their personal opinions
about controversial issues to themselves as much as possible. While speaking at a recent judicial
conference, Justice Stevens, it was reported, said, “It’s quite unfortunate to be trying to pin down
judges on particular issues. What they’ve said in published opinions is one thing, but speculating
about issues is another.”66
Apart from, in all likelihood, facing questions about controversial legal and controversial issues,
Ms. Kagan, Senators have indicated, probably can also expect questions at her confirmation
hearings about her 1995 essay itself—specifically about its criticisms of how Senators question
Supreme Court nominees and, in turn, how nominees respond to those questions. “I talked to her
about that essay,” a news account has reported Senator Leahy, chairman of the Judiciary
Committee, as saying—with the Senator adding: “She said, ‘I think I’m probably going to hear
that quoted back to me a few times during the hearing.’ “I said, ‘Starting with me.’”67
Author Contact Information

Denis Steven Rutkus

Specialist on the Federal Judiciary
drutkus@crs.loc.gov, 7-7162

63 Jesse J. Holland (Associated Press), “Don’t Expect Kagan To Speak Her Mind Before Panel,” Lowell
(Massachusetts) Sun, May 12, 2010, accessed at http://www.nexis.com. (Hereafter cited as Holland, “Don’t Expect
Kagan.”)
64 Ibid.
65 Jesse J. Holland, “In Old Article, Kagan Invites Tough Questioning,” The Associated Press, June 3, 2010, accessed
at http://www.nexis.com. (Hereafter cited as Holland, “In Old Article.”)
66 Holland, “Don’t Expect Kagan.”
67 Holland, “In Old Article.”
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