Coburn Questioned Kagan About Lack of Experience

In February 2009, Sen. Tom Coburn, R-Muskogee, questioned Elena Kagan about her lack of judicial experience when she was before the Judiciary Committee on her nomination to be solicitor general. The transcript is below. On March 19, 2009 Coburn voted in the full Senate for Kagan’s nomination to be solicitor general. Sen. Jim Inhofe, R-Tulsa, was one of 31 senators, all Republicans, who opposed her nomination.

Coburn is still on the Judiciary Committee, which will consider Kagan’s nomination to be a U.S. Supreme Court justice.

Senator COBURN. Thank you. Welcome to you both.
Ms. Kagan, one of the things that you said earlier was explaining
your role in terms of all three branches of the Federal Government,
and I just kind of have a ‘‘what if.’’ What if we have a statute that
has been previously signed by the executive branch, passed by Congress,
and we have an executive order that undermines the statute?
In that case, you would have to figure out whether you support
the executive order or you support the statute? How would you
go about determining that?

Ms. KAGAN. That is a very interesting hypothetical question,
Senator. I will say a little bit about a process first, because the first
thing that I would do is really to reach out to people within the
Government—and that means both within in the administration
but also to Congress—to try to figure out what is going on and who
requires representation and so forth. So there would be a lot of
work to be done to talk to people, both the people responsible for
the EO and the people responsible for the statute.
But I will give you just a gut instinct, which is that in a case
like that, the defense, the obligation to defend statutes continues
on, and the same narrow two exceptions are the only reasons in
which you would not defend a statute: either if there is no reasonable
basis in law, and it would not appear to me that an EO which
call into question the legal basis for a statute; or if the statute impinged
on a core element of executive power. And those would be
the only two exceptions, both extremely narrow, and my guess is
that your hypothetical would not fall within either.

Senator COBURN. OK. Thank you very much.
Of all I have read, the only real criticism that you have had is
that you have not been a litigant in the past. As a physician, you
know, I do not send patients to the professors at the university unless
they are the expert in the field who have actually practiced
rather than just taught. And I wonder how you respond to the criticism
of this wonderful resume you have, but yet you have never
been a justice and you have never actually been a litigant. I have
no doubt in hearing you that you are up to the task, but how are
you going to handle that and how are you going to prepare yourself?