Sen. Arlen Specter’s statement on why he voted against Elena Kagan for solicitor general

Then-Republican Sen. Arlen Specter’s March 19, 2009 floor speech articulating why he voted against Elena Kagan’s nomination to be solicitor general, the lawyer who represents the government before the Supreme Court:

Mr. SPECTER: Turning to the subject matter at hand, the nomination of Dean Elena Kagan for Solicitor General of the United States. I begin by noting Dean Kagan’s excellent academic and professional record. I call her Dean Kagan because she has been the dean of the Harvard Law School since 2003.

She has excellent academic credentials: summa cum laude from Princeton in 1981, and magna cum laude from the Harvard Law School in 1986, where she was on the Harvard Law Review. She clerked for Circuit Judge Mikva and Supreme Court Justice Marshall and she has had government service.

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The office of Solicitor General is a very important office. That is the person who makes arguments to the Supreme Court of the United States on behalf of the United States government. In addition to making arguments, the Court frequently asks the Solicitor General for the Solicitor General’s opinion on whether a writ of certiorari should be granted in pending cases. So the Solicitor General is sometimes referred to as the 10th Supreme Court Justice–a pretty important position.

I have gone to substantial length, really great length, to find out about Dean Kagan’s approach to the law and approach to the job of Solicitor General and to get some of her ideas on the law because she is nominated to a critical public policymaking position. I had the so-called courtesy visit with her in my office, which was extensive, as ranking member on the Judiciary Committee. We had an extensive hearing, where I questioned her at some length. Written questions were submitted, and she responded. I was not satisfied with the answers that were given, and when her name came before the committee for a vote, I passed. That means I didn’t say yea or nay. I wanted to have her nomination reported to the floor so we could proceed, and I wanted an opportunity to talk to her further. I did so earlier this month. I then wrote her a letter asking more questions and got some more replies. I use the word “replies” carefully because I didn’t get too many answers as to where she stood on some critical issues.

During the course of the hearing, we discussed extensively some of her very deeply held positions. The question was raised by me, given those positions, would she be able to take a contrary position on some statute that she is obligated to uphold in arguments before the Supreme Court. She said she would. But the question remains, when you feel so strongly–and the record will show what she had to say–whether you can really make a forceful argument as an advocate. Theoretically, you can. Lawyers are not supposed to necessarily believe in their positions; they are supposed to advocate. The clash and clamor of opposing views in our adversarial system is supposed to produce truth. Lawyers advocate more so than state their own positions. But there is a degree of concern when the views are as strongly held as Dean Kagan’s have been.