DURBIN: I'd like to take this line of questioning to the next level, the ultimate criminal penalty, the death penalty. Because what I found interesting -- I'm such a fan of John Paul Stevens. And if you look back at his political origins, we came out of different branches, or from different branches of the Illinois political tree; that's for sure. But in the time that he served on the court, over 30 years on the court, I really have come to respect him so much, and the role that he plays, the important role that he plays there.
And what I find interesting is a parallel outcome in you judicial careers. The first was from Justice Harry Blackmun, and Linda Greenhouse wrote this book that I've quoted from before. In
Justice -- at the end of his career, near the time of his retirement, made an observation about the death penalty, which he had supported throughout his term on the Supreme Court.
A case came along and he had this famous sentence, oft-quoted, "From this day forward," Justice Blackmun wrote, "I no longer shall tinker with the machinery of death."
He basically had reversed his position on the death penalty, after more than 30 years of service on the bench, when he concluded that it could not be applied fairly, based on his experience and all the cases that had come before him.
Justice Stevens had a similar epiphany in the case of Baze v. Rees, and he went through this long analysis of the death penalty and concluded as well that it was cruel and unusual, and he basically said, though it wouldn't affect the ruling in this particular case, that he believed that, at this point in his career, he could no longer support the death penalty.
You've had questions asked of you from this Judiciary Committee, when you came before us for solicitor general, about your position on the death penalty. And I think -- I know what your answer is going to be, and I'm going to give you a chance to put it on the record again. But then I would like to ask a follow-up question about Justices Stevens and Blackmun at the end of their judicial careers.
For the record, would you state your position on the death penalty?
KAGAN: Well, you're exactly right, Senator Durbin, that this was asked me during my solicitor general hearing and in the written questions that followed, and I said then what I'll repeat today, which is that the constitutionality of the death penalty generally is established law and entitled to precedential weight.
DURBIN: You...
KAGAN: I think somebody also asked me whether I had moral qualms about imposing the death penalty. This was in connection with my solicitor general nomination, so I think that the concern was whether, in any work as solicitor general, I could appropriately make decisions. And I said that I had no such moral qualms and that I could conscientiously apply the law as it was written.
DURBIN: Now I'll ask you to reflect on what happened at the end of the -- end of the judicial careers of Justices Blackmun and Stevens, where, after considering all of these death penalties throughout their time on the bench, death penalty cases, I should say, throughout their time on the bench, they came to the conclusion that we could not apply this law in a fair way without creating an unfair result.
What do you think led them to that at that point in their careers?
KAGAN: I don't know, Senator Durbin, and I would be reluctant to speak for either one of them. This is obviously a -- a difficult area of the law, an area in which there are great stakes and where people and judges feel their responsibilities in -- as very heavy, and appropriately so.
As I -- as I suggested to you, I do think that the constitutionality of the death penalty generally is settled precedent. I think even Justice Stevens agreed with that. He -- in those comments that he made, he suggested that he did not think it was appropriate to do what Justice Brennan and Justice Marshall had done, which was to dissent in every death penalty case. And he thought that that was inappropriate because of the weight of the doctrine of precedent.
DURBIN: When you clerked for Justice Marshall, his views on the death penalty were well known. And can you recall conversations with him on the subject when you were his clerk?
KAGAN: Well, they were well known. And Justice Marshall's clerks had, as a kind of special responsibility, and Justice Brennan's clerks as well -- clerks carry out the vision of the people for whom they work. And Justice Marshall and Justice Brennan did believe that the death penalty was unconstitutional in all its applications, but more specifically, I think, viewed themselves as having a special role in each death penalty case to make sure that there were no special problems in the imposition of a death penalty, and if there were, to bring those problems to the attention of the rest of the court to make sure that those issues would not be -- would not be missed or overlooked.
And the clerks for Justice Marshall and Justice Brennan, of whom I was one -- that was a significant part of the job.
DURBIN: And for the record, I mean, your position, as you view this issue, if you are confirmed and become the Supreme Court justice is -- would be different than that of Justice Marshall?
KAGAN: Senator Durbin, it would be, because I do believe that the constitutionality of the death penalty is settled precedent, going forward, and Justice Marshall did not believe that.

I suppose there is some comfort in knowing she won't be doing the Marshall dissent-in-every case schtick. However, I'm also not expecting her to be the critical fifth vote to affirm in any case. I could be wrong and hope I am, but given her liberal and academic background and the absence of any contrary indication, that is what I think we can expect.