HARVARD LAW SCHOOL

CAM.BRIDGE . MASSACH'OSE'Tl'S • Oll38

OHICB OF THE DEAN

Tl:lcpbonc (617) '1~5·4GOJ Fax (617) 1195·~115

March 18, 2009

Senator Arlen Specter

United States Senate Committee on the JUdiciary Washington, D.C. 20510-6275

Dear Senator Specter: .

This letter contains responses to the questions from you and your colleagues attached to your letter of March 14, 2009. I hope you will find them informative and useful. I understand and respect the Senate's need to evaluate my nomination fully, and as I said to you when we met last week, I would very much like your and your colleagues' support.

In preparing my original responses, I discussed the Tole of the Solicitor General with several past officeholders and reviewed their testimony, written. and oral, As a result, 1 can say with some confidence that, taken as a whole, my responses provided at least as much information to the Senate as it ever bas had in reviewing a nomination for this position. I answered fully all questions relating to the way in which I would approach the Solicitor General's responsibilities, as well as all questions relating to my prior writings and statements (of which there are many). I took a different approach only on questions that asked for roy personal views about specific cases and doctrines. My thought was that while these views would not affect the way I would perform my duties, statements of them might prejudice the institutionalinterests of the Solicitor General's office. J understand that recent S'olicitors General of both parties have called you to

. .§uP.£ort this general approach. }1y concern is that certain kinds of responses might short-circuit ~ or improperly 1I1fluence the critically important processes by which the Solicitor General '5 office makes decisions or might undermine those decisions once made,

Notwithstanding these concerns, I told you when we met that I would take another stab at addressing any uncertainties you continued to have about my nomination or filling in any gaps you thought remained in the record. In answering your most recent set of questions, including those I have seen before, I have made an effort, while remaining faithful to the institutional interests of the Solicitor General's office, to say all that 1 possibly can in response to each and every inquiry. In other words, rather than declining to answer a category of questions, because that category raised institutional concerns, I have tackled each question individually, thought deeply about various ways of providing information, and gone right up to the line where I think institutional interests take over. I think these responses do provide you and your colleagues with additional information relevant to considering my nomination.

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Before turning to these answers, 1 would like to make a general point, responsive to the statement in your recent letter that my personal views are relevant because they will factor into my decisions on whether to advise the Court to grant certiorari or whether to file an amicus brief in cases in which the United States is not a party- I agree with you that these decisions are in some sense more discretionary than decisions about defending a statute or executive action when the United States is a party in a case. But as I will explain further below, with respect to these decisions too, the Solicitor General is acting not as a policymaker, but as a lawyer representing the long-term interests of the United States. The Solicitor General would make decisions of this kind based not on personal views, but on determinate federal interests, And the Solicitor General's office has longstanding and rigorous processes in place, usually involving numerous client agencies and components, to identify and evaluate the nature and extent of these interests.

All that said, please find below the best and fullest answers I can give, consistent with my duties to the office I hope to hold, to your individual questions:

Death Penalty: In your previous responses, you did not adequately answer my questions regarding the death penalty noting, "Like other nominees to the Solicitor General position, I have 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 statements: of opinion might be used to undermine the interests of the United States in litigation." Previous Solicitor General nominees, however, have answered this question. For example, Seth Waxman, in response to a question from Senator Hatch wrote, "I am not morally opposed to capital punishment, and I believe the Department or Justice should fully apply the Supreme Court's constitutional precedent in this area." Further, in response to a question I posed to Attorney General Holder when he was nominated to be Deputy Attorney General, asking whether he philosophically agrees with the imposition of the death penalty, he expressed his personal opinion stating that he is "not a proponent of the death penalty." Please provide a more detailed answer to the following question:

1. Justice Marshall, the justice for whom you clerked, maintained that the death penalty was always unconstltutlonal, Do you think that Justice Marshall had it right?

a. Do you support the death penalty?

b. Do you believe it is constitutional as applied. in ,the United States?

c. If your answer is no, are you prepared to argue in favor of the

constitutionality of the death penalty before the Supreme Court?

In my previous responses, I wrote that nothing in my personal views regarding the death penalty would make it difficult for me to carry out the Solicitor General's responsibilities in this, area and that, if confirmed as Solicitor General, I would argue, consistent with Supreme Court precedents, that the death penalty is constitutional. To explicate further: (a) I am not morally opposed to capital punishment. (b) The Supreme Court has upheld

"iFie death penalty as constItutional in a wide variety of cases and circumstances. I believe the Department of Justice should fully apply the Supreme Court's constitutional

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precedent in this area, I accept that body o flaw and its premise that the death penalty may constitutionally be applied. More particularly, if confirmed as Solicitor General, I would as strongly defend federal death penalty statutes as I would defend any other kind of federal legislation.

Foreign Law: Your response to my question on foreign law was insufficient. In particular, your answer did not address circumstances or amendments other than the Eighth Amendment where reliance or consideration of foreign law might be appropriate. Please expand on your answer.

2. In your view, is it ever proper for judges to rely on contemporary foreign or International laws or decisions in determining the meaning of provisions of the Constitution?

a. If so, under what circumstances would you consider foreign law when interpreting the Constitution?

b. Would you consider foreign law when interpreting the Eighth Amendment?

Other amendments?

There are some circumstances in which it may be proper for judges to consider foreign. law sources in ruling on constitutional questions. (a) This is most often the case when the Court has deemed interpretation of a provision to rest in part on current practices and norms regarding some subject. (b) The classic case is the Eighth Amendment, where the Court, in determining what counts as "cruel and unusual" punishment, often looks to "evolving standards of decency that mark the progress of a maturing society," Atkins v. Virginia, 536 U.S. 304, 312 (2002) (quoting Trop v, Dulles, 356 U.S. 86, 101 (1958», as exemplified by practices both in the United States and around the world. I do not know of any bodies of constitutional doctrine other than that associated with the Cruel and Unusual Punishment Clause of the Eighth Amendment that survey current practices and norms in this way. In my last set of answers, I noted by way of example that the Court's analysis of the Second Amendment in District a/Columbia v. Heller, 554 U.S. ~.~ (2008), would grant no relevance to foreign law in defining the s=r= of the right to keep and bear arms. This approach, which looks only to American constitutional history and traditions, seems to me much more the norm than the exception. If I am confirmed as Solicitor General) I would offer reasonable arguments from foreign. law When such arguments might attract the support of one or more Justices for the Office's position.

This approach seems to me the appropriate one for an advocate before the Court to take.

Constitutional Authority under the Commander-in-Chief Clause: In response to my question, you articulated the principles you would consider when analyzing any executive action, but did not indicate whether you believed such actions would be constitutional or how you would apply those principles to the circumstances I posed. In contrast, when Paul Clement was asked whether "the President has tbe power to set aside laws by invoking his Commander-in-Chief authority" or whether he believed "the anti-torture statute or any other statute governing the treatment of detainees is unconatitutlonal," he responded that '~it is not accurate to say that the President can 'set aside' laws" and continued that be had

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"no present belief that any existing statutes related to torture or the treatment of detainees are unconstitutional." Please expand on your answer.

3. Do you believe the President has the constitutional authority as commander-in-chief to override laws enacted by Congress and to immunize people under his command from prosecution if they violate these laws passed by Congress?

a. Do you belteve the President has the authority to circumvent the Foreign Intelligence Surveillance Act (FISA), and bypass theFlSA court to conduct warrantless electronic surveillance that may include spying on Americans?

I stated in my prior response to this question as follows: "The appropriate analysis in considering any question of this kind derives from Justice Jackson's concurring opinion in Youngstown Sheet & Tube Co. v, Sawyer, 343 U,S. 579 (1952). In that opinion, Justice Jackson describes three situations: the first where executive power is exercised pursuant to a congressional authorization; the second where executive power is exercised in the

a bsence of an y congressional action; and the third 'when the President takes measures incompatible with the expressed or implied will of Congress.' In the last situation, Justice Jackson notes, presidential 'power is at its lowest ebb' and 'must be scrutinized with caution, for what is at stake is the equilibrium established by all! constitutional system.' This does not mean the President never has power to act in such a situation, for on some occasions, as Justice Jackson recognizes, Congress is indeed 'disabljed]' from acting upon a subject. But these occasions are rare and cannot be created or justified merely by a general invocation of the commander-in-chief power, These principles are the ones I would apply to the consideration of any executive action, including any action relating to FISA."

Solicitor General Clement wrote Senator Durbin in connection with his nomination: "I do not believe that it is accurate to say that the President can (set aside' laws that Congress bas duly enacted. That said; it may be possible for Congress to enact a law that so intrudes on the President's constitutional authority that it violates Article II of the Constitution." As indicated by my answer above, I agree with both parts of General Clement's testimony in this regard. (a) To explicate further, with specific reference to FISA: I have no present belief that this Act (or any provision thereof) is unconstitutional, that the President could violate or disregard it, or that he could immunize people under his command from prosecution if they did so (although he of course could pardon them). Although I do not think you previously asked me about the anti-torture statute or laws relating to detainees, I concur with General Clement's statement in this regard as well.

Habeas Rights: In your response to my question regarding habeas rights for detainees, you failed to answer the question posed as to the scope of habeas rights for detainees held overseas. Other Solicitor General nominees have provided more fulsome answers to questions regarding their views on specific statutes, treaties, or constitutional provisions. For example, in response to a question from Senator Durbin, Paul Clement provided a detailed answer to his views on torture. Sirntlarly, Seth Waxman provided a detailed answer to a question from Senator Hatch on ]Jliranda rights. Although Mr. Waxman noted that hecould not provide his "express views or take positions in advance of presentation of

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a concrete case," he did provide an outline of the. Department's position and discussed how the Department would approach a case reconsidering 18 U.S.c. § 3501, a statute concerning the admissibility of confessions. In light of this history, please provide a more detailed answer to the following question:

4. In Boumediene v. Bush, the Supreme Court held that the detainees at the U.S. Naval Base at Guantanamo Bay, Cuba, Hare entitled to the privilege of habeas corpus to challenge the legality of their detention." Slip Op. at 42. The Court based its holding on Article J, Section 9, Clause 2, of the Constitution (the Suspension Clause), which allows for suspension of habeas corpus rights only in cases of rebellion or invasion. Currently..a federal judge is exploring whether Boumediene's result reaches another military prison where the U.S. now holds perhaps three times the number of detainees still left at Guantanamo Bay - the "Bagram Theater Internment Facility" at an airfield some 40 miles uutside of Kabul, Afghanistan.

a. Do you believe that the detainees imprisoned at Bagram are entitled to the writ of habeas corpus?

. b. Since both prisons are under the total control of the U.S., and both prisons may be used to Imprtson these men for an unlimited duration (although the President has vowed to close Guantanarno), how do you distinguish them?

(a) As I noted in my prior response to this question, the Department of Justice recently informed the district court inA! Maqaleh v. Gates, Civ. Action No. 06-CV-01669, that it would adhere to its previously articulated position that the court lacks jurisdiction over habeas petitions filed by detainees held at the United States military base in Bagram, Afghanistan. The government previously had argued that Section 7(a) of the Military Commissions Act 0[2006 (MeA) forecloses habeas review and that the Suspensions Clause does not extend to Bagram. I have not developed and do not possess any views on this question in conflict with What the Department of Justice has argued. I note that as Solicitor General, my presumptive obligation to defend federal statutes would apply to Section 7(a) of the MeA. (b) In distinguishing the two detention facilities, the government argued that the United States exercises no "de facto sovereignty" over the military base in Bagram, which was a predicate to the Supreme Court's conclusion in Boumediene v. Bush, 128 S.Ct 2229 (2008), that the Suspension Clause applies :in Guantanamo Bay. The government also argued that "because Bagram is in a theater of war where the United States is engaged in active hostilities in close partnership with the host nation and multinational forces, extending the privilege of the writ of habeas corpus to [detainees at Bagrarn] would be both impracticable and anomalous." I have not myself investigated the similarities and differences between Guantanamo Bay and Bagram and do not have any views on the question in conflict with the Department of Justice's position.

Specific Cases: You. failed to provide answers to my questions concerning whether specific Supreme Court cases were rightly decided. You stated in your response that "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

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with this responsibility to state my own views of whether particular Supreme Court decisions were rightly decided." Other Solicitor General nominees, however, have provided more complete discussions of Supreme Court decisions. For example; Paul Clement, in response to a question asking whether he agreed with the Supreme Court's expansive Eleventh Amendment jurisprudence, provided a detailed description of the Eleventh Amendment cases that be had argued and concluded by stating, "If confirmed as Solicitor General, I would continue to defend such statutes against constrtutlonal.jncluding Eleventh Amendment challenges," And, as I noted above, he stated that he did not believe any anti-torture statute was unconstitutional. Similarly, when asked if Rasul, Hamdi, and Padilla were :rightly decided, Mr. Clement noted that he "fully acceptjed] the Court's determinations in those cases," and he provided a brief description of his understanding of the cases and outlined important constitutional questions still remaining. Seth Waxman, in written answers, expressed his approval of the Supreme Court/s decision to adopt the position of the Solidtdr General in the case Agnostini v. Felton. In light of this history, please provide a more detailed answer, including important constitutional questions that you believe remain, for the following questions:

5 _ Do you believe that the Supreme Court's Second Amendment decision in District of Columbia v. Heller was rightly decided?

The Supreme Court held in District of Columbia v. Heller, 128 8.ct. 2783 (2008), that the Second Amendment guarantees an individual right to keep and bear arms - or; as the Court stated, "to possess and carry weapons in case of confrontation:' In light of this individual right, the Court struck down a statute banning handgun possession in the home. At the same time, the Court stated that "some measures regulating" firearms would comport with the Second Amendment constitutional right, Essentially, the Court made clear that the right to bear arms should be understood like any other constitutional right (the Court, for example, offered an analogy to the First Amendment) as providing strong but not unlimited protection. The Court based its holding principally on an extensive analysis of the original meaning and history of the Amendment, which the dissents contested.

Although 1 have never 'mitten about or taught the Second Amendment, I have read a fair bit of the scholarship that has appeared in recent years regarding the original meaning and history of the Second Amendment. J have always found this scholarship singularly difficult to evaluate, Both sides (that is, the individual rights view and the collective rights view) present cogent and sometimes powerful arguments, and I have come away thinking that immersion in theprimary sources, which I have never attempted, would be necessary to choose between them with any degree of confidence. My instinctive response to reading the opinions in. Heller last summer was much the same. This is not to say that the questions at issue are incapable of resolution; to the contrary, r have no doubt that the textual and historical questions with which the opinions wrestle are fundamental to appropriate constitutional analysis. It is only to say that I have not done the work required, I therefore have no reason to believe that the Court's analysis was faulty.

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Regardless, if confirmed as Solicitor General, I would view Heller - and its fundamental understanding that the Second Amendment guarantees an individual right to keep and beat anus - as settled law, and I would fully accept the Court's determination, The occasions on which the Solicitor General asks the Court to reverse a decision are appropriately few and far between, and I cannot now see how any of the reasons that are typically given for doing so would be applicable in this context. At the same time, the Solicitor General's office likely would continue to defend against constitutional challenge a variety of federal regulations invol ving firearms. The Solicitor General's office filed an amicus brief in Heller which at once advocated the individual rights view of the Second Amendment and argued that "[n]othing in the Second Amendment properly understood, . . calls for invalidation of the numerous federal laws regulating firearms." In light of the Solicitor General's responsibility to defend federal legislation, which is fundamental to

its role of representing the long-term interests of the United States, r too would apply the usual presumpyon of constitutionality to federal firearms regulation.

6. Do you believe that the Supreme Court's Takings Clause decision in Kelo v. New London was correctly decided?

Kelo Y. New London, 545 U'S, 465 (200S), involves the appropriate understanding of the public use requirement of the Takings Clause. The question in the case concerned the permissibility of condemning private property to advance an economic development plan involving transfer of the property to another private party. The Court applied rational basis review, "reflecting our longstanding policy of deference to legislative judgments in this field," and upheld the taking because the municipality's plan "unquestionably serves a public purpose." The principal dissent in the case saw the decision as effectively deleting the "public use" requirement from the Takings Clause by "wash[ing] out" any distinction between public and private use of property after condemnation. I have never written about the Takings Clause; nor have I taught the subject (takings law typically is covered in the Property class rather than the Constitutional Law class at Harvard). As a result, I have no particularly well-grounded views about the Takings Clause generally or the meaning of its public use requirement. As Solicitor General, I would view Keto as settled law and presume its continued viability. Decisions involving Kelo might arise in the Solicitor General's office in either of two different ways. If the federal government, acting in accordance with statutory authority, were itself to take property for purposes similar to those involved in Kelo, the Solicitor General's office typically would defend that government action. (I believe, however. that the federal government rarely if ever takes property for these purposes.) By contrast, if Congress were to enact legislation curtailing the effective reach of Kelo - for example, by barring federal funding for state and local projects involving Kelo-type takings - the Solicitor General's office typically would defend this legislation against any constitutional challenge.

7. Do you believe that the Supreme Court's decision in Zelman v. Simmons-Harris, which ruled that school-chotce programs that include religious schools don't violate

the Establishment Clause, was: eorrectly decided? .

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In Zelman v. Simmons-Harris, 536 U.S. 639 (2002.), the Court upheld Cleveland's school voucher program after finding that it had the valid secular purpose of improving educational quality for poor children and that it did not have the effect of either advancing or inhibiting religion. The latter determination rested on the ground that the program provided assistance to a broad class of citizens who themselves could choose freely, without any incentives pointing in one or another direction, among religious and nonreligious educational options. Tho decision provoked a dissent, focusing in large part on the question whether the parents in the case had the extent of free choice between religious and non-religious options thai the majority claimed. In broad strokes, however, the Zelman decision followed naturally from a set of cases placing neutrality at the center of Establishment Clause inquiry and upholding governmental aid programs that operate through the medium of private parties to provide assistance to both religious and nonreligious institutions. Included among these cases, going back more than 25 years now)

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are Mueller v, Allen, 463 U.S. 388 (1983) (tax deduction for educational expenses);

Witters v, Washington Department 0/ Services/or the Blind, 474 U.S, 481 (1986) (vocational rehabilitation services), and Zobrest v, Catalina Foothills School District, 509 U.S. 1 (1993) (disability services). I fully accept this body of law, including in connection with school voucher programs, and I can imagine a variety of situations in which, if confirmed as Solicitor General, I would make arguments consistent with it. For example, if Congress resumes funding of a school voucher program for the District of Columbia and a constitutional challenge to this program were brought, I would expect the Solicitor General's office to rely largely on Zelman to defend the validity of the program.

8. Do you believe that the Supreme Court's decision in Morrison. v. Olson, which ruled that the independent-counsel statute did not violate the constitutional separation of powers, was correctly decided?

Morrison v. Olson, 487 U.S. 654 (1988), presented the question whether the independent counsel provisions of the Ethics in Government Act o.f..l.S7s-,v.iolat.ed the separation of powers principles set forth in the Constitution. ~~_t.-p'erson ma~upheld these provisions even though they insulated a prosecuto'filiioffti.mrt (oSua1.tytlfought of as exercising quintessentially executive powers) from the direct control of the President. The Court reasoned, inter alia, that "[ a]lthough the counsel exercises no small amount of discretion ... , we simply do not see how the President's need to control the exercise of that discretion is so central to the functioning of the Executive Branch as to require as a matter of constitutional law that the counsel be terminable at will by the President." Viewed broadly, the decision stands for the proposition that Congress has broad (though by no means unlimited) power to structure or design the administrative state, including the ability to insulate. certain administrative officials from direct presidential control and thereby create zones of administrative independence. Justice Scalia, the lone dissenter in Morrison, is the primary adherent of the opposite view, often known as the "unitary executive" position (though that term more recently has been applied to other matters), that the Constitution grants the President exclusive control, not capable of limitation by Congress, of any person performing executive functions.

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In my article Presidential Administration, 114 Harv. L Rev. 2245 (2001), I considered the validity of the broad unitarian position, though without specific reference to Morrison, I wrote there:

[A]lthough I am highly sympathetic to the view that the president should have broad control over administrative activity> r believe, for reasons I can only sketch here, that the Unitarians have failed to establish their claim for plenary control as a matter of constitutional mandate. The original meaning of Article II is insufficiently precise and, in this area of staggering change, also insufficiently relevant to support the Unitarian position. And the constitutional values sometimes offered in defense of this claim are too diffuse, too diverse, and for these reasons, too easily manipulable to justify removing from the democratic process all decisions about the relationship between the President and administration - especially given that this result would reverse decades' worth of established law and invalidate the defining features of numerous and entrenched institutions of government. (p, 2326)

. This passage fairly clearly rebuts the position taken by Justice Scalia in dissent in Morrison (although 1 tell my students every time r teach this case that, for many reasons, I think his opinion is one of the great dissents of American constitutional law).

The Solicitor General's office not infrequently argues that legislation limiting the President's control over administrative personnel or functions violates the Constitution.

It is noteworthy that the office's view of its obligation to defend congressional statutes traditionally includes two exceptions: first, where there is no reasonable basis to mount a constitutional defense; and second (relevant here), where the statute infringes on the Executive's constitutional prerogatives and functions. In Morrison itself, the Solicitor General's office took a broad view of executive power in arguing against the validity of the independent counsel statute. The Morrison decision is now very well settled, and I am aware of no serious recent challenge to either its holding or its basic framework. But even after Morrison, legislation interfering with the President's ability to control officials performing executive functions may violate the Constitution either because the legislation aggrandizes power to Congress itself, see Bowsher v, Synar, 478 U.S. 714 (1986), or because the legislation imposes a limitation that is severe enough as to "impede the President's ability to perform his constitutional duty," see Morrison, 487 U.S. at 691.

Several other members of the Committee have expressed their concern over what they believe are nonresponsive answers to their questions. Accordingly, below a .. e a few of the questions that they mentioned as having insufficient responses.

Senator Hatch:

1. At your hearing, I asked you about your review of Professor Stephen Carter's book, The Confirmation Mess. Writing in the University Of Chicago Law Review, you distinguished between a judicial nominee's ~'jlldicial philosophy" and "her 'views on particular constitutional issues" and argued that Senators should ask

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about both. You wrote that the "c:ritical inquiry as to any Indtvtdual.. .concerns the votes she would cast., .and the direction in which she would move the institution." You suggested that failing to focus on such views and votes gives the confirmation process "an air of vacuity and farce" and renders the Senate "incapable of either properly evaluating nominees or appropriately educating the public."

3. How do you reconcile this view with Canon SA of the Model Code of Judicial Conduct or the judicial oath of office which require judicial impartiality?

h. At your hearing, you said: "I'm not sure that, sitting here today, I would agree with that statement." Do you?

c. Do you still believe that Senators who do not ask about particular issues, votes, and directions are contributing to a vacuous or farcical confirmation process?

d. If you have changed you r views on these questions, please explain why.

(a) As 1 noted in my prior answer to this question, the book review clearly stated, in accord with Canon SA and the judicial oath of office, that judicial nominees cannot make pledges, promises) or commitments (whether explicit or implicit). It argued, however, that some kinds of statements - "comment]s] on judicial methodology, on prior caselaw, on hypothetical cases, on general issues" - often do not fall within this prohibition (pp. 939-40). In keeping with this distinction, I should emphasize, because the question may appear to indicate otherwise, that r never suggested that Senators should ask about particular "votes"; I said only that, in the end, how a Justice votes in fact matters a great deal, (b-d) As I also tried to indicate previously, my views on this question have changed to some degree - and with all respect, I wjj] say that with every additional day I spend in the confirmation process, they change still further! In all seriousness, and to

. repeat part of what I said at my hearing, I think a balance needs to be struck - between the legitimate needs of the Senate to figure out what kind of person they are being asked to confirm and the legitimate interests of the nominee and, even more important, of the branch or office she is poised to join. I now think that Senators who decline to ask about substantive views may be demonstrating a finer appreciation than I possessed in 1995 of the importance of these institutional interests. There are, after all, many ways to gain information about roost nominees consistently with these institutional interests - from scrutiny of a person's work and career, her writings and speeches, her reputation in the legal community, and her oral and written testimony regarding how she would approach the position to which she; has been nominated.

Senator Gressley:

2. This past year, the U.s. Supreme Court held in the Heller case that the Second Amendment protects an individual's right to possess a firearm, regardless of their participation in a "well regulated militia.'; President-elect Obama stated that he supported an individual's right to possess a firearm and signaled his support for the Heller decision. What is your personal opinion of the rights afforded by the Second Amendment? .

3. What is your personal opinion of the Heller case?

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b. If you are confirmed. will you commit to protect an individual's right to possess a firearm?

Please see my extensive answer to Senator Specter's Question #5 above. As stated there, I am unable on present knowledge to evaluate many of the arguments in the Heller opinions; accordingly, I have neither reason nor inclination to take issue with the Court's decision. If confirmed as Solicitor General, I would view Heller - and its fundamental understanding that the Second Amendment guarantees an individual right to keep and bear arms - as settled law, and T would protect that right, as set forth in the Court's decision.

Senator Sessions:

3. Do you believe the federal government has a rational basis for the military's recruiting policy - whether embodied in "Don~t AskIDon't Tell" or the statute that policy supplements -10 U.S.C. § 6547 Row would you analyze the constitutional issue on the matter, whether under the Due Process clause or the Equal Protection Clause?

Under prevailing Equal Protection law, the "don't ask, don't tell" policy and 10 V.S.c. § 654 are subject to rational basis scrutiny. As I noted in my prior responses to this and other questions, the rational basis standard is very easy to satisfy. See, e.g., New York City Transit Authority v, Beazer, 440 U.S. 568 (1979). Moreover, courts frequently grant Congress even greater deference than usual when military matters are involved. See, e.g., Rostker v Goldberg, 453 U.S. 57 (1981). In enacting 10 U.S ,C. § 654, Congress made extensive findings explaining the military's recruiting policy. These findings satisfy the Equal Protection Clause' 5 rational basis test, and the government accordingly has had broad success in defending the "don't ask, don't tell" policy and its associated statute against constitutional challenge. See, e.g., Able v. United States) 155 F.3d 628 (2nd Cir. 1998); Richenberg v, Perry, 97 F.3d 256 (8th Cir, 1996).

Senator Cornyn:

4. As Solicitor General, you would be charged with defending the Defense of Marrlage Act. That law, 3S you may know, was enacted by overwhelming majorities of both houses of Congress (85-14 in the Senate and 342~67 in the House) in 1996 and signed into law by President Clinton.

'a. Given your rhetoric about the Don't Ask, Don't Tell policy-you called it "a profound wrong-a moral injustice of the first orderv-s-let me ask this basic question: Do you believe that there is a federal constitutional right to samesex marrfage?

I previously answered this question briefly, but (I had hoped) clearly, saying that "[tlhere is no federal constitutional right to same-sex. marriage." 1 meant for this statement to bear its natural meaning. Constitutional rights are a product of constitutional text as interpreted by courts and understood by the nation's citizenry and its elected

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representatives. By this measure, which is the best measure I know for determining whether a constitutional right exists, there is no federal constitutional right to same-sex marriage.

5. Do you believe that the Su.preme Court's decision in Lee v. Weisman, which held that a nonsectarian Invucation at a public school graduation violated the Establishment Clause, was correctly decided?

The Court in Lee v, Weisman, 505 U.S. 577 (1992), held that it was a violation of the Establishment Clause for a public school to have a cleric offer a prayer as part of its official graduation ceremony, The Court grounded this holding in what is usually referred to as the anti-coercion principle of the Establishment Clause - the idea that "government may not coerce anyone to support or participate in religion or its exercise." 505 U.S. at 587, In finding that coercion existed in this case, the Court reasoned that attendance at the ceremony was "in a fair and real sense obligatory," 505 U.S. at 586, and that an attendee could not avoid participating in the religious exercise. The dissent challenged the notion that the state was compelling a form of participation in the religious activity, arguing for a narrower, and less "psychological," understanding of the anticoercion principle. The case presents in stark form some of the difficulties of forging a coherent body of law under the Establishment Clause. What appears coercive to one person looks wholly voluntary to another; similarly, what may seem to involve an "endorsement" of religion by the state may seem, oppositely, to constitute a simple "acknowledgment" of the nation's religious traditions, see, e.g. Lynch v, Donnelly, 465 U.S. 668 (1984). In part for this reason, the Court's constructive task is immensely difficult. As Solicitor General) I would view Lee }'. Weisman as settled law> entitled to respect under important principles of stare decisis. At the same time, r would consider carefully and respectfully, in any case that raises similar issues, the practices of schools on military bases and other federal enclaves. I might note in this regard that schools on federal enclaves routinely engage their students in reciting the pledge of allegiance, the text of which is set by Congress. The Solicitor General's office has had no difficulty defending that statute notwithstanding the existence of Lee v, Weisman. See Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004).

Please use this oppor-tunity to supplement your answers to these questions.

Finally, as I discussed with you at OUl' meeting, the Solicitor General does make some policy decisions when, at the request of the Supreme Court, she provides recommendations on certain cases. Please answer the following general questinns, 1) As Solicitor General, how would you dectde whether to file an amicus brief in a Supreme Court case, absent the Court's invitation? 2) Would you consult with the White House in every case? 3) If not, on what information would you rely? 4) What weight would you give to congressional acts? 5) Recognizing that in cases where the Solicitor General makes a recommendation to grant cerriorarf, the Supreme Court accepts 50 to 60 percent for review and where the Solicitor General recommends denial, the Court typically declines to hear an overwhelming ma] orily of those petitions, how will you decide which case to

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recommend? 6) If it is a close question, would you. err on the side of filing a brief or recommending that the Supreme Court grant certiorari?

(1-3) In deciding whether to file an amicus brief, the Solicitor General's most critical inquiry is whether there is a significant federal interest in the case. The impetus for filing an amicus brief often comes from a division of the Department of Justice or another administrative agency that believes such an interest exists. Whether or not prompted in this way, the Solicitor General's office typically consults with all possible administrative agencies or components that might have an interest in or knowledge of the case, Consultations also might occur with the parties 10 the case or other affected individuals. The White House is consulted sometimes, but not in every case. An Assistant to the Solicitor General and a Deputy to the Solicitor General undertake these consultations, review the recommendations received, and make a recommendation of their own to the Solicitor General. As Solicitor General Clement stated in responding to questions following his confirmation heating, "the decision-making process typically involves ongoing give and take and, where there is disagreement in the initial recommendations, often involves meetings where the goal and sometimes the result is to obtain a consensus position that accommodates the interests that initially produced disparate initial recommendations." The Solicitor General's final decision is based on an assessment of the merits of the government's proposed position and the strength of the government's institutional interests in the casco (4) Congressional statutes may play an important role in the Solid tor General's decision. For example, if the litigation involves a state statute that is similar to a federal one, the court's decision as to the former may affect the implementation or even the validity of the latter. That potential for spillover would suggest an important institutional interest of the federal government in the case.

(5) I understand your question about seeking certiorari, in light of your cover letter to me, to refer to cases in which the United States has not been involved as a party, but is providing an opinion at the Court's request, In such a case, the Solicitor General's office would initiate a process very much like the one detailed above, That is, lawyers in the office typically would consult with the relevant litigating division of the Department of Justice, interested federal agencies, and the parties to the litigation, among others. An Assistant and Deputy would write recommendations to the Solicitor General based on this extensive (and often back-and-forth) process of consultation. In making the ultimate decision whether to recommend a grant of certiorari, the Solicitor General would consider not only the nature and extent of the federal interest, as described above, but also the factors that the Court itself typically uses in determining whether to exercise its certiorari jurisdiction. (This tradition of viewing the certiorari decision from the Court's perspective is evident even in cases in which the United States is a party. See Eugene Gressman et al., Supreme Court Practice, 9Ih ed. 2007 (noting the strictness with which the office screens the cases lost by the government below before deciding to petition for certiorarij.) These factors) listed in the Court's Rule 10, prominently include the significance of the issue in the case and the existence of conflicts between courts on that issue.

(6) I would decide whether to file an amicus brief or recommend a grant of certiorari without putting a thumb on either side of the question. Solicitor General alsop. noted in his confirmation hearing that the filing of too many amicus briefs may cause the Court to "lose respect for the filings of the Solicitor General's office," Similarly) much of the credibility of the

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Solicitor General's office comes from how protective it is of the Court's time and attention in recommending grants of certiorari, Perhaps the Court should take some greater number of cases than it now does, But even if this were the case, I would try to make these decisions "straight up," without having a default rule in favor of filing a brief or recommending a grant of certiorari.

Below are some examples of cases where the Supreme Court has asked for the Solicitor General's input. Please respond to the questions followlng each one and provide an analysis of the policy considerations that you would weigh in making your recommendation.

1. In In re: Assicurazioni Generali S.p.A, Holocaust Insurance Litigation, 340 F. Supp. 2d 494, 501 (S.D.N.Y. 2004)~ multiple Holocaust survivors and victims' families brought a class action suit against the Italian insurance company Assicurazioni Generali S.p.A. ("Generali"), which held insurance policies established before and during the Holocaust that were never honored. The Southern District of New York ruled in Generalt's favor, entering an order approving a settlement agreement providing for the release of the plaintiffs' monetary claims against the company. Specifically, the court held that the plaintiffs' claims Were preempted by an "executive policy favoring voluntary resolution of such claims through" the International Comrnlssion on Holocaust Era Insurance Claims. That decision followed the Supreme Court's holdfng in American Insurance Assoc. \I. Garamendi, 539 U.S. 396 (2003), which invalidated a California Jaw that would have required insurers doing business in the state to disclose certain informatlon about Holocaust era insurance policjes,

The plaintiffs subsequently appealed the D,i.strict Court's decision. At the time of the appeal, I was informed that the Second Circuit had wri.tten to Secretary of State Condoleezza Rice requesting the Administration's position on whether the adjudlcanon of these sui" was consistent with U.S. foreign policy. The Department of State deferred to the Department of Justice to respond to the Court's query. I, along with other Members of Congress, sent (etten to then A~ting Solicitor Ceneral Gregory Garre, urging that "[ajbsent an explicit prohibition on adjudicatingsuch suits against Italian insurance companies, [the Department] give full weight to the equitable llJ:'guOle:uts in favor of allowing these claims to proceed." Nevertheless, the Department of Justice submitted a "letter brief" in the Second Circuit case, which

. stated that "it would be in the foreign policy interests of the United States that such claims not be pursued through the courts." The brief added that "the United States does not suggest that its foreign policy interests concerning these claims ... in themselves furnish an independent basis for dlsmlssal.'

a. If the Supreme Court consulted you as Solicitor General on whether to grant certlorari in a case such as thls, where the Court is faced with the tension between serious equitable concerns and foreign policy considerations, how would you approach the matter? Please provide your analysis, including the 'considerations both in favor of granting certiorari and recommending against granting certiorari

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If the Supreme Court were to consult the Solicitor General's office in a case like this one, I would first ensure that the typical consultative process 1 described above was initiated, This process at the least would involve the Department of State; the Civil Division of the Justice Department, and representatives of persons affected by the possible foreclosure of claims. As you note, the Second Circuit in this case reached out to the Department of State, not the Department of Justice. The letter opinion that was returned to the court came from the Department of Justice, but it was presumably based principally on the Department of State T S assessment of whether and how the claims in the suit conflicted with the foreign policy interests of the United States, Notably.the person who signed the letter opinion to the Second Circuit was not the Solicitor General, but the Assistant Attorney General for the Civil Division. Had the case gone to the Supreme Court, the Solicitor General's office would have consulted with the head of this Department of Justice office as well. And the Solicitor General's office typically would consult at this stage with persons favoring the continuance of claims, whether within or outside the government, to ensure appropriate consideration of their equities and interests. (1 am not at all familiar with this case, but if I understand the facts correctly, the Second Circuit asked the government only for a statement of its foreign policy interests, rather than for a weighing of those interests against the litigants' equities and interests, I presume a filing in the Supreme Court in a case like this one typically would involve the government in suggesting to the Supreme Court how to strike this balance and whether, as a result of it, the claims should be disrnissed.) At the end of this process, the decision of the Solicitor ,General on seeking certiorari is likely to reflect in large measure the views of the State Department as to the magnitude of the foreign policy interests involved, These views, fur example, caused the Solicitor General M file an amicus brief in a similar case, American

, Insurance Ass 'n \I, Garamendi, 539 U.S, 396 (2003), arguing for preemption of a state statute designed to secure compensation for Holocaust victims on the ground that this statute interfered with the United States's traditional use of voluntary mechanisms to resolve Holocaust victims! claims.

2. In In re Terrorist Attacks on September 11,2001, 538 F.3d 71 (2d Cir. 2008), the plaintiffs, victims who incurred losses in the September 11 th terrortst attacks, sought damages from the defendants, Saudi Arabia, Saudi princes, a banker, and the Saudi High Commission for Relief to Bosnia and HerzegQvio;l (SHe), who were alleged to have funded Muslim charities that provided material support to al Qaeda, The Southern District of New York dismissed the plaintiffs' claims an the grounds that the defendants were immune from suit under the Foreign Sovereign Immunities Act of 1976. The Second Circuit affirmed and the plaintiffs filed a petition for certiorari. The Supreme Court has asked the Solicitor GeneraPs office for its recommendation on whether to grant that petition.

a. In a case such as the one mentioned above, what policy considerations would you take into account in making a recommendation to the Court? Please provide your an alysts, Including the considerations both in favor of granting certiorari and recommending against granting certiorari.

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I am once again unfamiliar with this case, and I note that it is currently pending in the Solicitor General's office. Although I have had no contact with that office about the

case, I assume that a process of the kind I described above has been initiated, A critically important part of this process would be to receive the views of and to work with the client agencies (including the Department of State), the relevant components of the Department of Justice, and interested persons outside the government to formulate a position on the Court's request critical issues for the participants in this process would include the impact of the decision below (or its reversal) on both the foreign policy and the antiterrorism interests of the United States. This inquiry would involve exploration of the purposes) scope, and effect of the Foreign Sovereign Immunities Act) as well as consideration of the role private suits might play in combating terrorism and providing support to its victims.

3. In the recent Supreme Court case District of Columbia v. Heller, the Solicitor General filed a brief arguing that the Second Amendment supports an individual right, but that the Court of Appeals did not apply the proper standard in evaluating the Second Amendment claim and, therefore, the case should be remanded. ThenVice President Cheney, however, slgued on to a different amicus brief in his capacity as Prestdent of the Senate that was filed by 5S Senators and 250 members of the House of Representatives, This brief argued for affirming the Court of Appeal's decision. Clearly, there was a difference of opinion as to the position the government should take.

a. Had you been Solicitor General during this time, what approach would you have taken in this case given the differing opinions in the Administration?

Although I was not involved in the Solicitor General's decision-making in Heller, I understand that its position on the appropriate standard to use in the case arose from its view of the federal interest in regulating firearms, In explaining this interest, the Solicitor General's office wrote: "Congress has enacted numerous laws regulating firearms. Those statutes include restrictions on private possession oftypes of firearms that are particularly susceptible to criminal misuse. The United States has a substantial interest in the constitutionality and effective implementation of those laws." The Solicitor General thus saw its approach as integrally connected to and proceeding from its responsibility to defend federal statutes. I suspect that the Solicitor General would have liked to achieve consensus on this position and attempted to do so. There is little doubt that consensusbuilding within. the Administration is a crucial aspect of the Solicitor General's role in certain cases, (There is also little doubt that General Clement was exceptionally skilled

at this part of his job; if anyone could have brought about consensus in this case, he would have done so.) It also might make sense in a case such as this one for the Solicitor General to reach out to members of Congress or their counsel to determine why a conflict exists and whether anything might be done about it. But sometimes disagreement will persist and the Solicitor General must make the call on the basis of the long-term interests of the United States. which In this case appeared to reside in the protection and future

defense of numerous federal statutes. .

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4. In American Needle, Inc. v. NFL, 538 F.3d 736 (7th Cir. 2008), Arnerlcan Needle~ a company that has produced apparel with NFL team logos for the past 20 years, brought suit alleging that the NFL and the owners of its 32 teams violated the antitrust laws by colluding to restrict the output of NFL apparel by entering into an exclusive license with Reebok, The district court dismissed the suit, holding that the NFL was a single entity and therefore exempt from the antitrust laws. Although the majority of circuits have concluded that the NFL is not a single entity, the Seventh Circuit affirmed, concluding fhat the NFL is a single entity for purposes of promoting football and that selling NFL apparel amounts to promoting football. American Needle has sought certiorari to resolve the circuit split, but before granting a writ of certiorari, the Supreme COUl"t has asked the Solicitor General to file a brief on the issue. The case could determine whether other joint conduct by the NFL, including the sale of television rtghts, is subject to the antitrust laws. I have many concerns regarding the conduct of the NFL~ particularly with regard to the NFL's decision to broadcast games on pay television, rather than on free broadcast television.

3. In a case such as the one mentioned above, what policy considerations would you take into account in making a recommendation to the Court? Please provide your analysis, including the considerations both in favor of granting certiorari and recommending against granting certiorari.

I am unfamiliar with this case, and I am not an expert in antitrust law. I also note that this case is currently pending in the Solicitor General's office. where I assume the attorneys are in the middle of their normal consultative process. This process typically would involve obtaining a number of views, including that of the Assistant Attorney General for Antitrust, about the correctness and importance of the appellate decision. The Solicitor General's office also typically would factor into the analysis the presence and nature of any circuit split, in accordance with Rule 10 of the Supreme Court.

5. In Hltt v. Kansas, 537 u.s. 1104, cert: denied (Jan. 13,2003), the Supreme Court asked the Solicitor General to weigh in on a state criminal case. Hitt, argued that, based on the Supreme Court's ruling in Apprendi v. New Jersey, his juvenile adjudications should not be.counted in hls criminal history, since these adjudications were not the product of a jury trial. The Solicitor General responded that the case should be held in abeyance, pending the resolution of a similar case in the Eight Circuit. The Supreme Court denied certiorari in the case.

a. If the Supreme Court consulted you as Solicitor General on whether to grant certiorarl in II case such as tbis, how would you approach the matter? Please provide your analysis, including the considerations both in favor of granting certiorari and recommending against granting certiorari.

This case presents a good example of the kind of analysis that the Solicitor General's office often performs at the request of the Supreme Court - essentially advising the Court on the best vehicle to use to decide an important issue of federal law . In Hilt, the Solicitor General' s office agreed with the petitioner that the questions raised - involving

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the proper treatment of prior juvenile adjudications in a recidivist sentencing scheme"implicated important matters in the administration of criminal law," The Solicitor General also noted that a circuit split had developed concerning the issue. But for various technical reasons relating to Kansas's sentencing law and its application to Bitt's case, the Solicitor General advised the Court that Hilt did not present the issues at stake as cleanly and directly as did another available case. In a brief filed the same day, the Solicitor General advised the Court to grant the petition in that case, Smalley v. United States. to hold Hut pending that decision, and then to dispose of it as appropriate. The Solicitor General's office thus advised the Court not just as to whether an important federal issue was at stake, but also as to whether the instant case provided the most suitable vehicle for addressing that issue. I do not know either of these cases) but I believe the Solicitor General acts appropriately in advising the Court as to the suitability of particular cases for addressing important federal questions.

6. In Cartoon Network LP, LLLP v. esc Huldings, Inc., 536 F.3d 121 (2d. 2008), owners of copyrighted programs br-ought action against a cable television company (Cablevision Systems) seeking declaratory judgment as to Whether the cable company's digital video recorder (DVR) system would violate their copyrights and an injunction enjoining cable company from making the systems available without copyright licenses. The district court found for the copyright owners. The Second Circuit reversed and lifted the injunction against Cablevlslon Systems. The Owners of the copyrighted programs have filed a petition for certiorari.

a. In a case such as the one mentioned above, What policy considerations would you take into account in making a recommendation, to the Court? Please provide your analysis, including the considerations both in favor of granting certiorari and recommending against granting certiorari.

I am unfamiliar with this case, and I am not an expert in intellectual property law, I also note that this case is currently pending in the Solicitor General's office, where I assume the attorneys are in the middle of their normal consultative process. This process typically would involve obtaining a number: of views, including that of the United States Copyright Office? as to the importance of the issue and the effect of the ruling below on the federal interests in protecting intellectual property, including encouraging innovation. The Solicitor General's office also typically would advise the Court as to whether the courts are divided on the issue and, relatedly, whether the issue is ripe for the Court's adjudication,

7, In Seminole Tribe y. Florida, 517 U .S. 44 (1996), an Indian tribe filed suit against Florida to compel negotiations under the Indian Gaming Regulatory Act (lGRA). The dtstrlet court denied Florida's motion to dismiss, and the state appealed. The

. Eleventh Circuit Court of Appeals dismissed the appeal and the Supreme Court granted certiorari. At the request of the Supreme Court, the Solicitor General filed an amicus brief in support of the petitioners, Seminole Tribe, and in defense of the statute at issue. In a 5-4 decision, the Supreme Court held that Congress lacked authority under the Indian commerce clause to abrogate the states'

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Eleventh Amendment immunity, and (2) the doctrine of Ex parte Young did nut apply in light of intricate remedial provisions of IGRA.

a. If the Supreme Court consulted you as Solicitor General, how would you approach the matter? Please provide your analysis, including the considerations favoring and recommending against upholding the statute at issue.

The critical fact for the Solicitor General in this caseappears to have been that the Eleventh Circui t held unconstitutional a provision of a federal statute, the Indian Gaming Regulatory Act. As I have noted on many occasions in my testimony, the Solicitor General's office has a special responsibility to defend federal statutes against constitutional attack, provided reasonable arguments are available to do so. Although a majority of the Court upheld the Eleventh Circuit in Seminole Tribe, reasonable arguments in defense of the statute existed in the case. The Solicitor General thus acted appropriately in filing an amicus brief supporting the Tribe both at the petition stage and on the merits.

8. In Republic of Iraq v. Beaty, 129 S.Ct. 893 (2009) petitioners filed suit to determine whether the Republic of Iraq continues to be amenable to suit under the exception to foreign sovereign immunity contained in 28 U.S.C. 1605(a)(7). In the underlying case, American citizens sued Iraq pursuant to 28 U.S.C1605(a)(7) and were awarded more than $10 million. Petitioners were Kenneth Beaty and William Barloon, American citizens taken hostage by the Hussein regime in the aftermath of the first Gulf War. In 2003, their children, respondents, sued Iraq, also pursuant to Section 1605(a)(7), for emotional distress resulting from their fathers' captivity. Iraq filed a motion to dismiss for lack of jurisdiction, which the district court denied. The court of appeals summarily affirmed. Beaty case has been combined with Simon v. Republic of Iraq in the appeal. The district court dismissed the consolidated actions as untimely, and the citizens appealed. The D.C. Court of Appeals held that courts retained jurisdiction over cases that were pending pursuant to the statutory exception in the Foreign Sovereign Immunities Act (FSIA), allowing for lawsuits against state sponsors of terrorism, when Congress enacted National Defense Authorization Act (NDAA). The court also held that the actions were timely and the political question doctrine did not apply. At the Supreme Court's mvteanon, the Solicitor General filed a brief in support of grating certiorari, and has submitted an amicus brief recommending that the Court reverse the court of appeals' judgment.

3.. If the Supreme Court consulted you as Solicitor General on whether to grant certiorari in a case such as this, how would you approach the matter? Please provide your analysis, including the considerations both in favor of granting certiorari and recommending against granting certiorari.

b. Also, please provide your analysis of the merits of the case weighing 'both the equitable and foreign policy concerns at issue.

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This case is now pending before the Supreme Court and will be argued on April 20, 2009. The Solicitor General advised the Court to grant certiorari in the case on the grounds that the decision of the court of appeals is in error and that it "threatens important national priorities with respect to the reconstruction ofIraq." The Solicitor General noted that there is no circuit conflict on the question presented, which ordinarily would counsel against certiorari; he argued, however, that this factor was outweighed by the exceptional importance of the issue. I have no knowledge of the case and cannot make an evaluation of its merits, even if this evaluation were appropriate (which I do not believe it would be) while the case is pending before the Court with a brief from the Solicitor General supporting reversal. I can say that the factors that the Solicitor General considered in advising the court whether to grant certiorari - the correctness of the decision below, the importance of the decision below to the foreign policy interests of the United States, and the presence or absence of a circuit split - appear to be the appropriate ones in a case of this kind,

9. In Wyeth v. Levin, 2009 U.S. Lexis 1774 (2009), a patient brought action against a drug manufacturer for failure to Warn of the dangers of administering an antinausea medication directly into patient's vein, which resulted in onset of g3ngrCrte and amputation of patient's arm. The question at issue was whether the prescription drug labeling judgments Imposed on manufacturers by the Food and Drug Administration (FDA) pursuant to FDA's comprehensive safety and efficacy authority under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301 et seq., preempted state law product liability claims pr-emised on the theory that different labeling judgments 'Were necessary to make drugs reasonably safe for use. The Washington Superior Court held in favor of the patient, and the Vermont Supreme Court affirmed. The manufacturer appealed and the Supreme Court granted certiorari. The Supreme Court asked the Solicitor General to me an amicus brief. The Soltcitor General filed a brief in support of the petitioner, Wyeth, and urged the Court to reverse the 'Vermont Supreme Court. The Supreme Court disagreed and upheld the Vermont Supreme Court's decision.

a. If you have been Solicitor General at the time this case was litigated and the Supreme Court had consulted you, would you have submitted a brief that reached the same conclusion as Solicitor General Clement's brief? If not, how would your analysis have differed?

b .. What factors would have weighed in favor of the patient and what factors weighed in favor of Wyeth? Please also provide your analysis of the public policy concerns at issue.

Although I have no inside knowledge, even a cursory review of the Solicitor General's briefs in this case suggests that the FDA had a strong position 0.1'). the policy question at issue in Wyeth and that the Solicitor General's analysis largely followed from that policy position. Assuming this hypothesis is correct, I have little reason to think that I would have acted differently from General Clement if! had been Solicitor General at the time; given some fair measure of ambiguity in the FbCA itself and given that the FDA took a strong policy position against what it considered "overwarning" 01) pharmaceutical

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products, I suspect I would have filed a similar brief on the merits. But it is possible, perhaps even likely, that the FDA in this new administration would have an entirely different policy view - that it would understand federal labeling regulations as only a floor and have no objection to, or even affirmatively favor, state law imposing additional obligations on drug manufacturers. In that case, I would file a different brief, arguing against preemption of the tort suit at issue. The point here nicely illustrates one of the central themes of my testiroony- that the Solicitor General is most often a lawyer, rather than a policy maker. As Solicitor General, I would not weigh the respective interests of the patient and drug manufacturer or analyze the relevant public policy concerns in the way suggested by your question. If and to the extent that the statute or other legal materials involved in a case permit such a weighing of public policy interests, that weighing should be left to the policymakers.

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Thank you for your continued consideration of my nomination. As r have written to you in the past; I have great respect for the Senate and its institutional role in reviewing nominations. And I have enjoyed talking with you about these issues. r very much hope these responses satisfy your concerns. r certainly would appreciate your support.

Sincerely,

/?~/;y~

ElenaKagan

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