Supreme Court nominee Solicitor General Elena Kagan meets with Senator Patrick Leahy (D-VT) on the Hill.
Photo: Diego M. Radzinschi / NLJ
Sen. Patrick Leahy, D-Vt., has participated in the confirmation hearing for every U.S. Supreme Court justice since Sandra Day O'Connor's in 1981. This week, he will chair the hearing for Elena Kagan, his second such assignment in as many years. Earlier this month, Leahy spoke with The National Law Journal's David Ingram about his preparation for the hearing, what he plans to ask the U.S. solicitor general and why questions about Kagan's personal life should be off-limits. The interview has been edited for length and clarity.
The National Law Journal: With President Obama's nominees, you often use your first question to ask about a controversial subject. For example, your first question to Eric Holder was about waterboarding. Would you say you try to deflate the opposition in these hearings?
Sen. Patrick Leahy: No, I want to learn as much as I can about the person, especially on a significant nomination. My questions are usually designed to answer things that I'm most interested in. And if it goes into controversial issues, obviously I assume that a lot of people are interested in the same issues.
NLJ: You went through a confirmation process with Elena Kagan a year ago. What are you interested in this time around? What's left?
Leahy: I don't think there's a great deal left. I think all of the questions that might be asked were available to be asked then. There's been nothing new in her life or her actions or anything else since then. But it's not going to be like Justice [John Paul] Stevens. We confirmed him in 2 1/2 weeks. I would be happy to have that repeated, but as a practical matter that's not going to happen.
NLJ: So you're saying there's nothing left that you still want to know about her?
Leahy: I went through a great deal of questions with her privately and in the hearing when she was up for solicitor general. I will ask more when she's before us for this confirmation hearing. Primarily, I want the American people to hear from her. I think we can do a great service to the American public by making sure they get some sense of who the nominee is.
NLJ: There have been complaints in the past that that's hard to do, because senators are seen using their time to draw attention to themselves rather than to ask about the nominee. Is that something that you, as chairman, try to regulate?
Leahy: Every senator has to speak for himself or herself. Most of my questions are pretty short. I want to hear from the nominee. Outside of the opening statements we all make, I don't feel any need to give long speeches to either impress the nominee or the American public.
NLJ: One of the areas that's gotten attention is how Kagan, as Harvard Law School dean, handled military recruiting. Do you agree with the actions she took then? Leahy: One thing that makes this all a tempest in a teapot is that the U.S. military was never banned from campus. In fact, the U.S. military did recruit students on campus while Elena Kagan was dean. So, it is hard to think what difference it would make. Now, for those who want to make an issue, that's fine. And I'm sure all the senators who want to make this an issue are people who are very eager to enlist in the military and go to war.
NLJ: You've talked about wanting a nominee from outside the "judicial monastery." Is Kagan the kind of nominee you had in mind?
Leahy: I've made that same recommendation to every president since I've been here. You can see how effective I've been. I'd be happy to see somebody from a distinguished area of private practice. I think she's certainly far more outside the judicial monastery than any of the other eight members who are there.
NLJ: The criticism of Kagan is that: Yes, she's outside the judicial monastery, but she otherwise has been in pretty elite company for the past several years....
Leahy: Well, as have all of the other eight members of the Supreme Court. But I think that company speaks more to her own legal brilliance and legal abilities. She's had to break the glass ceiling twice: as the dean of Harvard Law and as the first woman to be solicitor general.
NLJ: Several weeks ago was, we saw a lot of discussion on TV and blogs about Elena Kagan's dating habits and personal life ... .
Leahy: I think that's totally irrelevant, and I don't see what that has to do with her abilities as a judge.
NLJ: If a senator tries to bring that up, will you rule that subject out of order?
Leahy: Senators won't bring it up any more than they have with other nominees.
NLJ: Well, the extreme example would be Clarence Thomas, but Sen. Joseph Biden made a point of drawing a line between Clarence Thomas' professional life and his personal life. I guess what I'm hearing is that you would draw a similar line ... .
Leahy: I've never gone into nominees' personal lives, and I've probably voted on or been involved in tens of thousands of nominees ranging from the military to the State Department. I've also chaired hundreds, even thousands, of hearings for nominees in numerous areas. I've never once heard anybody, Republican or Democrat, come up with questions about somebody's personal life.
NLJ: I'd like to ask about how you prepare for these hearings. I know that Joe Biden, when he was chairman, would have "murder boards" with his staff.
Leahy: Well, I spend a lot of time with my staff. They're poring all over these things and giving me constant memos and updates. Normally, I'm able to get to my farm in Vermont, and I've done this several times -- just brought a truckload of writings and gone up there where I can sit in my chinos and a T-shirt and just read. This year, I've taken time that normally I'd be out campaigning and set it aside to read as much material as I can.
NLJ: You have not requested records from the solicitor general's office, although that was something you did with the Miguel Estrada nomination several years ago.
Leahy: Originally, we had the impression he was going to make that available, and then didn't. The Bush administration set the precedent by not providing solicitor general documents in connection with either the [John] Roberts or [Samuel] Alito nomination. Both were confirmed. Of course, she's going to be there to answer questions as to what her views are.
NLJ: Have you looked at the number of cases that she'll have to recuse from? Is that a concern for you?
Leahy: Every justice that has come from the government like that has had to recuse themselves. Chief Justice Roberts, Alito, [Sonia] Sotomayor -- others who have been sitting court of appeals judges and gone to the Supreme Court. It's usually pretty easy to tell when they should.
NLJ: Other than Justice Stevens, no other justices have hinted that they're going to retire soon, and you are next in line to be chair of Appropriations, once Sen. Daniel Inouye steps aside. Do you expect this will be your last confirmation hearing as Judiciary chairman?
Leahy: Not by any means. Sen. Inouye will be re-elected, and he'll stay as chairman of the Appropriations Committee and do a superb job there. I expect to be re-elected and I'll stay as chairman of Judiciary. I certainly have no anticipation of being on Appropriations, even though obviously it would be a lot less work.
Editor's note: See additional coverage from The National Law Journal on Elena Kagan's nomination.
