[Congressional Record Volume 155, Number 48 (Thursday, March 19, 2009)]
[Senate]
[Pages S3520-S3532]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                           Mortgage Cram-down

  Mr. DURBIN. Mr. President, you are from the State of Ohio; I am from 
the State of Illinois. We face similar circumstances when it comes to 
mortgage foreclosures. Lots of the best and strongest cities in my 
State, large and small, are being inundated with mortgage foreclosures.
  Now, this started off with this predatory trap where a lot of people 
were lured into mortgages they could not afford. But there was a 
mortgage broker telling them: It will all work out. The price of your 
home is going to go up, and it is going to be a good source for you to 
borrow money in the future. So stretch a little. Trust me. You can make 
these payments, and a year from now, or when the mortgage readjusts, 
everything is going to be just fine.

[[Page S3523]]

  It did not work that way. Some people went into these mortgage 
agreements and negotiations without the equipment to understand what 
they were getting into.
  I am a lawyer by training. I have been through a lot of closings for 
real estate. We all know what it is about. They sit you in a room, your 
wife by your side, and put a stack of papers in front of you. They 
start turning the corners, talking faster than any salesman you have 
ever run into, telling you: Do not worry about this one, sign it. Do 
not worry about this one, sign it. It is routine, required by Federal 
law--on and on and on. Pretty soon, with your hand weary at the end of 
half an hour or so, you have signed 30 or 40 documents. They hand you 
the paper and say: The first payment is due in 60 days. I know you are 
going to love this place.
  That is what most closings are all about. Not many lawyers and very 
few purchasers stop them and say: I want to read this document. Can you 
tell me what paragraph 6 means? Are you sure I am understanding 
everything this means?
  Most of the time, the average people in America are at the mercy of 
the folks sitting around them. They are bankers, they are lawyers, real 
estate agents. They are at their mercy and, unfortunately, under some 
circumstances, some people were misled into mortgage arrangements which 
were just plain wrong.
  For the longest time we went through something called no-doc 
mortgages. Do you know what that means? No documentation.
  How much money do you make?
  Oh, I don't know, $50,000.
  How much debt do you have?
  Oh, I don't know, maybe $10,000.
  You qualify.
  Do you need some documentation?
  No, we have to move this through fast. We need to capture an interest 
rate.
  This sort of thing was the height of irresponsibility. At the end of 
the day, people ended up with these subprime mortgages for homes they, 
frankly, could not afford, and the day quickly came when this house of 
cards literally collapsed, and mortgages started being foreclosed 
across America.
  Well, it is not just your neighbor's problem when a house is 
foreclosed upon. It is your problem too. Even if you are making your 
mortgage payment, that neighbor's misfortune just affected the value of 
the home you hold near and dear. That neighbor's inability or failure 
to pay the mortgage payment is going to affect the value of your home 
where you just made the mortgage payment and continue to. That is the 
reality.
  The Chicago Sun Times recently reported on the situation of Chris and 
Marcia Parker. They are in the south suburb of Thornton just outside 
Chicago. They live in a small brick home that Marcia's father built in 
the early 1950s. She grew up in the house. The couple moved back home 
to take care of her elderly mother.
  At the time they took out a mortgage to pay for a new roof and a new 
furnace. They ran a small business, but the business failed, causing 
them to file for bankruptcy. They both landed new jobs with the same 
company, but were then laid off at the same time last July because of 
the recession.
  Chris, the husband, found a new job; Marcia has not. Now they are 
falling behind on their mortgage. They put up for sale the house 
Marcia's father built. They could not find a buyer. They have now 
received a foreclosure notice. The foreclosure could happen as early as 
a week from now. They are trying to reach the lender and work out an 
arrangement to stay in the home her parents built. Worse, they cannot 
find a place to rent because their previous bankruptcy, based on the 
failing small business, they have no idea where they are going to live 
and whether they will lose their home.
  Does this sound like a deadbeat couple to you? It does not to me. It 
sounds like a couple that has fallen on misfortune, tried their best, 
tried to get back on their feet, and they keep stumbling and falling 
again despite their best efforts. This family was not reckless. They 
were not speculators in the market. We are talking about a house her 
parents built. They did not buy too much house.
  This is a story of a family who has tried to do the right thing and 
is facing the very real possibility of losing their family home and 
having nowhere to turn. It is happening over and over again.
  In Chicago, there were nearly 20,000 homes last year which entered 
the foreclosure process. This map tells the story. It looks like this 
great city of Chicago with the measles. Well, it turns out to be this 
great city of Chicago with a reflection on the 2008 foreclosure 
filings.
  Get down here around Midway Airport where I travel a lot--I go to 
O'Hare a lot, too, I might add--and take a look at what is going on in 
these neighborhoods, in these plots. I took a look at one specific Zip 
Code right around Midway Airport, and I looked at it visually closely. 
I could only find five blocks in that Zip Code that did not have at 
least one home in mortgage foreclosure.
  Now, if you traveled to these homes, you might notice them when you 
are flying in and out of the city. These are neat little brick bungalow 
homes, not lavish homes, basic two- and three-bedroom homes where folks 
spend the extra dollars to finish the basement, put in an above-ground 
pool in the backyard, or try to put something in the attic where the 
kids can sleep over if they want to. These are basic middle-class 
family homes, and folks are losing them right and left.
  Now, 2 weeks ago I went to Albany Park. That is on the north side of 
the city of Chicago--again, neighborhood after neighborhood of neat 
little family homes where people care, where the homes are well taken 
care of, little garden plots and flowers and decorative efforts by them 
to make sure their home looks special. Smack dab in the middle of that 
area was a building, a three-story building that had been, I guess, 
developed originally as a condo. When they could not sell the condos, 
they developed it into apartments, and then mortgage foreclosure. That 
is now boarded up. It has been vandalized by gangs that go in and rip 
out the copper piping and everything they can get their hands on. The 
drug gangs hang out there.

  I stood around that neighborhood with the neighbors, many of whom 
were elderly people, folks who have accents because they came to this 
country and worked hard and now want to retire. They looked at me and 
said: Senator, what are you going to do about this? This mortgage 
foreclosure on our block is changing our lives. We put all of our lives 
in that home, and now this monstrosity of a foreclosure is destroying 
our property value.
  Well, I have been involved in an effort for 2 years to do something 
about this, 2 straight years. I am still trying. And here is what it 
is. If you go into bankruptcy, if you have more debts than you have 
assets, the court right now can take a look at your debts. In some 
instances, they can try to restructure the debt so you can pay it off.
  If you have a vacation home in Florida, the bankruptcy judge can say: 
Well, rather than foreclose your vacation home in Florida, we think you 
have enough income coming in that we will work with the lender and try 
to make the mortgage terms work. If you own a farm, we can work with 
the lender to make the mortgage terms work. If you own a ranch, same 
situation. Same thing on that boat, on that car, on that motorcycle; we 
can do it--with one exception.
  Do you know what the exception is? Your private residence. Your 
personal home. The bankruptcy court is prohibited by law from looking 
at that mortgage and saving your home. They can save your vacation 
condo, your ranch, your farm, all of these other things. They cannot 
save your home.
  It makes no sense. If your home means as much to you as it does to my 
family and most families, you would think that would be a high 
priority. Who resists this? The banks do and the mortgage bankers do. 
They have given it this nice, negative name: cram-down. We are going to 
let the bankruptcy court cram down that mortgage on your home.
  Boy, they sure did not use cram-down when it came to vacation homes 
or farms or ranches, but now they want to stop it. Why? Because many of 
them do not want to negotiate a new mortgage. It makes no sense.
  A bank, when a mortgage goes into foreclosure, will lose at least 
$50,000 on

[[Page S3524]]

that mortgage foreclosure--at least, with legal fees and other 
expenses. And in 99 percent of the cases in mortgage foreclosure, the 
house ends up on the inventory of the bank. That banker who sits behind 
the desk at your local bank now has to worry about who is going to cut 
the grass, who is going to drive by to make sure the home is not being 
vandalized, how in the world they are going to sell it.
  What we are trying to do is set up a process so these homes facing 
foreclosure, thousands and thousands of homes in the city of Chicago 
which I am honored to represent, and millions of people across America 
have a fighting chance.
  Now, I have made concessions. I have worked on compromises over the 2 
years. Some of the financial institutions are finally saying: All 
right, we will talk to you. When I started working on this problem 2 
years ago, they predicted as many as 2 million families in America 
could lose their homes. They predicted 2 million. We were told by the 
lending industry that those estimates were grossly exaggerated: 2 years 
ago, 2 million.
  Goldman Sachs now estimates as many as 13 million homes could be lost 
to foreclosure in the next 5 years. That is one out of every four 
private residences in America lost to foreclosure, a foreclosed home on 
every block in every city in every State in America, on average. That 
is the reality and the truth of this crisis.
  Last year when I called up this bill, they said: Durbin, there you go 
again. You are exaggerating it. It is not going to be that bad. We will 
take care of the problem. Well, we gave them all of the help to take 
care of it, the voluntary programs, and at the end of the day, where 
are we? We are in a desperate position in this country where we have to 
step up and finally break this cycle of mortgage foreclosures.
  Both sides have to give. I have been willing to compromise, some of 
the banking institutions have been, to make sure people go into the 
bank before they go into bankruptcy court, to give them a chance to 
work out the terms of a mortgage they can afford so they can stay in 
their homes and neighborhoods can be stabilized.
  That is why I fully support President Obama's plan to help 3 to 4 
million homeowners save their homes by modifying their mortgages to 
make them more affordable. The plan creates incentives that we need so 
that banks will finally do what has not been done for 2 years: 
aggressively modify loans so foreclosures can be avoided. That is in 
the best interests of homeowners and banks.
  But this plan is voluntary. Voluntary plans have successively failed. 
Every time we have said to the financial institutions: We will leave it 
up to you, you decide whether you want to do something, nothing is done 
of any major consequence. If the lenders don't want to participate in 
the President's plan or previous plans, they don't have to.
  The program pays servicers taxpayer money to offer loan modifications 
that may not be enough. We need to have at the end the possibility--not 
the probability but the possibility--that the bankruptcy court will 
have the last word. That is why the administration has included my plan 
in their proposal. The President supports my change in the Bankruptcy 
Code to allow mortgages on primary residences to be modified in 
bankruptcy just as other debts. If banks don't want judges to modify 
mortgages for them, they will be far more likely to do it themselves. 
How would it work? Only families living in the home would qualify. This 
isn't for speculation. This isn't for that extra condo you bought 
somewhere in hopes that you could turn a buck. It is your primary 
residence, the one you live in. Only mortgages for which the 
foreclosure process has started are eligible. No one who can pay their 
current mortgage can have a judge change those terms. Judges would be 
limited in how they can modify the mortgages. They could never create a 
mortgage that would create a worse result for the bank than 
foreclosure.
  If this bill passes, taxpayers don't lose a buck, and we could have a 
positive result where many people could win. The mortgages that are 
modified in bankruptcy will provide far more value to lenders and 
investors than foreclosure.
  Best of all, there is no expense to taxpayers.
  This is expensive to taxpayers. Why? Because if the home next door to 
you goes into foreclosure, the value of your home goes down, property 
tax revenues go down, and the local unit of government loses the 
revenue it could receive from those property taxes, for starters.
  If you can't buy and sell a home in your neighborhood, do you know 
what that means to the realtor, to the people who build homes, to those 
who sell carpeting for new homes, right on down the line?
  I will return to the floor next week to talk about this bill. I know 
opponents hate it. I can't persuade some of them no matter what I do, 
no matter what concessions I make. But I will not give up. For 2 years, 
we have been fighting to pass a strong housing bill to turn away this 
tide of foreclosures in Chicago and across America. I hope that on a 
bipartisan basis we can do that starting very soon.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. What is the business pending before the Senate at the 
moment?
  The PRESIDING OFFICER. The nomination of Elena Kagan to be Solicitor 
General.
  Mr. SPECTER. Mr. President, I came at 2 o'clock, when this nomination 
was listed for argument, and another Senator was speaking on another 
subject. We have just heard another Senator speaking on still another 
subject. Only two Senators have spoken so far in favor of the 
nomination. I say to my colleagues on both sides of the aisle, if they 
have anything to say about the nominee, they ought to come to the floor 
and speak.
  The chairman has raised a proposal about voting on the nomination and 
speaking afterward. Part of our deliberative process is to have 
Senators speak with the prospect--maybe unrealistic, maybe foolish--of 
influencing some other votes. We are not going to influence any votes 
if we speak after the vote is taken. But it may be that we are not 
going to have speakers. I urge my colleagues to come to the floor. This 
is Thursday afternoon. In the Senate, that is a code word. It means we 
are about to leave. There are no votes tomorrow, so there will be some 
interest in departure not too long from now. I think we ought to 
conclude at a reasonable time.
  In advance, I had been advised that quite a number of people want to 
speak for quite a long time. We got an allocation of 3 hours for the 
Republican side. That means 6 hours equally divided. Now it appears 
that some who had wanted extensive time will now not be asking for that 
extensive time. We ought to make the determination as soon as we can as 
to who wants to speak and for how long so that we can figure out when 
is a reasonable time to have the vote and conclude the debate so 
Senators may go on their way.
  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.
  I ask unanimous consent that her resume be printed in the Record at 
the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. SPECTER. 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

[[Page S3525]]

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.
  After the long process I have described, I still don't know very much 
about Dean Kagan. It is frequently hard, in our separation of powers, 
for the legislative branch to get much information from the executive 
branch. We look for information, and frequently we are told it is 
executive privilege. We are told it is part of the deliberative process 
or we are simply not told anything, with long delays and no responses.
  The legislative branch has two critical pressure points. One pressure 
point is the appropriations process, to withhold appropriations, which, 
candidly, is not done very often. It is pretty tough to do that. 
Another point is the confirmation process where nominations are 
submitted to us to be confirmed, which the Constitution requires. So 
there the executive branch has no choice. They can't talk about 
executive privilege or deliberative process or anything else. But there 
is a question as to how thorough nominees answers to questions should 
be.
  In discussing what answers we can reasonably expect from Dean Kagan, 
the issue of the questioning of judicial nominees is implicated to the 
extent that the tides have shifted as to how many questions Supreme 
Court nominees are asked. Not too long ago, there weren't even hearings 
for Supreme Court nominees. Then the generalized view was that 
nominations were a question of academic and professional 
qualifications. Then the view was to find out a little bit about the 
philosophy or ideology of a nominee but not to tread close to asking 
how specific cases would be decided. The President is customarily 
afforded great latitude with nominations. Then Senators look for 
qualifications, with the generalized view that they don't want to 
substitute their own philosophy or own approach to the law for the 
discretion of the President. Some Senators do. There is no rule on it. 
We may be in a period of transition where some have said the Senate 
ought to do more by way of utilizing Senators' own philosophical 
positions in evaluating the President's nominees, that we have as much 
standing on that front as the President. That is an open question, but 
I don't propose to suggest the answer to it today or to take a position 
on it. But it bears on how far we can go in asking Dean Kagan 
questions.
  I don't know very much more about her now than I did when we started 
the process. From the many questions that I asked her on cases, I have 
picked out a few to illustrate the problem I am having with figuring 
out where she stands and the problem I am having with her confirmation. 
One case of substance and notoriety is a case involving insurance for 
Holocaust survivors.
  The Southern District of New York Federal court held that plaintiffs' 
monetary claims were preempted by executive policy. The Second Circuit 
wrote to the Secretary of State and asked for the administration's 
position on the adjudication of these suits with respect to U.S. 
foreign policy.
  Dean Kagan was asked the question of what was her view on this case. 
This was a pretty highly publicized case, and it is pretty hard to see 
how an insurance company ought to be preempted or protected by foreign 
policy considerations. Well, Dean Kagan didn't tell us very much in her 
answer. The answer takes up two-thirds of a page, and most of it is 
about the consultative process, which I am, frankly, not much 
interested in. I want to know what she thinks about the policy.
  She said:

       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.

  It does not say very much. I want to know what foreign policy 
interests she is concerned about.
  Another case involving the terrorist attacks captioned ``In re 
Terrorist Attacks on September 11, 2001'' where people who were 
victimized on that day sought damages from Saudi Arabia, Saudi princes, 
and a banker, who were alleged to have funded Muslim charities that had 
provided material support for al-Qaida. The Southern District of New 
York Federal Court dismissed the plaintiffs' claims on the grounds that 
the defendants were immune from suit. The Second Circuit affirmed, and 
the Supreme Court then asked the Solicitor General's Office for its 
recommendation as to whether to grant the petition for certiorari. 
There, you have the ``tenth'' Supreme Court Justice, the Solicitor 
General, coming into the picture.
  Well, when I questioned Dean Kagan on this case, her response was: 
``I am unfamiliar with this case. . . . A critically important part of 
this process would be to'' work with the clients, the Department of 
State, and the Department of Justice. And the ``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.''
  Well, we do not know very much about her views from that answer. 
There has been a lot of information in the public domain that Saudi 
charities were involved. Fifteen of the nineteen hijackers were from 
Saudi Arabia. People were murdered. There are claims pending in court. 
The question is whether the Supreme Court is going to take the case. 
Well, I wish to know what the nominee for the position of Solicitor 
General thinks about it.
  I had calls from people in high positions--I do not want to identify 
them--saying: Well, don't ask those kinds of questions. Somebody in the 
executive branch. Well, I am not prepared to relinquish the 
institutional prerogatives of the Senate to ask questions. The 
executive branch nominees want confirmation. Well, Senators want 
information to base their opinions on.
  In the case of Republic of Iraq v. Beaty, the question was whether 
Iraq was amenable to suit under the exception to the foreign sovereign 
immunity clause. American citizens were taken hostage by Saddam Hussein 
in the aftermath of the first gulf war. They got more than $10 million 
in damages. The question, then, is, what would the Solicitor General 
do? The case is now pending before the Supreme Court. Dean Kagan gives 
an elongated answer saying very little, virtually nothing:

       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.

  Well, Dean Kagan has a point as to how much knowledge she has of the 
case. But when she says that an evaluation is not appropriate while a 
brief is pending from the Solicitor General supporting reversal--she is 
not the Solicitor General. She has not submitted the brief. She is not 
a party to the action. She is a nominee. She wants to be

[[Page S3526]]

confirmed. I wish to know how she would weigh this issue.
  Americans taken hostage by Saddam Hussein, and the verdict of $10 
million--why not have a judicial determination in a matter of this 
sort? How much do we defer to foreign governments who have murdered and 
abused and kidnapped American citizens? I think those are fair 
questions.
  I will discuss one more question because I see my colleague Senator 
Sessions is on the floor.
  That is the Kelo case, Kelo v. London, a very famous, widely 
publicized case on eminent domain. Well, does Dean Kagan have the 
record in the case? Has she gone through it line by line? No, that has 
not happened. But the case is pretty well known. It is pretty hard to 
say you do not know much about that. This is what she said in response 
to my question regarding the case:

       I have never written about the Takings Clause; nor have I 
     taught the subject. . . .

  Well, if that is relevant--I do not know if we would confirm very 
many people to the Department of Justice Attorney General position or 
Solicitor General position or to other positions if you had to have 
written about it or if you had to have taught a class on the subject. 
Here again, we know very little as to what she thinks about an issue.
  In essence, it is difficult to cast a negative vote on someone with 
the qualifications and background of Dean Kagan, but we have a major 
problem of institutional standing to find out from a nominee what the 
nominee thinks on important questions.
  The nominee disagrees with what I have said. I have talked to her 
about it. She thinks she can be an advocate for issues even though she 
feels very strongly the other way. She feels she does not have to 
answer questions because it would be inappropriate because the case is 
pending and the Solicitor General has rendered an opinion. Well, I 
disagree with that. I have no illusion the issues I have raised will 
prevail. I think it is pretty plain that Dean Kagan will be confirmed. 
But I do not articulate this as a protest vote or as a protest 
position, but one of institutional prerogatives. We ought to know more 
about these nominees. We ought to take the confirmation process very 
seriously. I believe the scarcity and paucity of Senators who have come 
to the floor to debate this nomination does not, candidly, speak too 
well for this institution. We are all waiting to vote to go home. But 
this is an important position. For a Supreme Court Justice nominee, 
television cameras would be present during the hearings, and everybody 
would be there, and everybody would be on camera.
  Well, I think we have to pay a little more attention, and I have gone 
to some length to try to find out more about Dean Kagan. In the absence 
of being able to do so and to have a judgment on her qualifications, I 
am constrained to vote no.
  Before I yield the floor, Mr. President, again, I ask my colleagues 
to come to the floor if they are going to have something to say. I 
would hope we could wind up our activities. We could go until 8 
o'clock. I do not think we ought to do that. My view is, we ought to 
vote no later than 5. But I am not the leader. That is just my view. 
But I do think people ought to come if they want to speak. Or maybe we 
will vote at 5 o'clock, and people can speak afterwards. I do not know 
how it will work out. But I think it would be very healthy if people 
spoke before the vote on the assumption that we have debate to try to 
influence other Senators because we are the world's greatest 
deliberative body, so it says in all the texts.
  I yield the floor.

                               Exhibit 1

                              Elena Kagan


                 solicitor general of the united states

       Birth: 1960; New York, New York.
       Legal Residence: Cambridge, Massachusetts.
       Education: B.A., summa cum laude, Princeton University, 
     1981; Daniel M. Sachs Graduating Fellow, Princeton 
     University; M.Phil., Worchester College, Oxford, 1983; J.D., 
     magna cum laude, Harvard Law School, 1986; Supervising 
     Editor, Harvard Law Review.
       Employment: Judicial Clerk, Judge Abner Mikva, U.S. Court 
     of Appeals for the D.C. Circuit, 1986-1987; Judicial Clerk, 
     Justice Thurgood Marshall, U.S. Supreme Court, 1987-1988; 
     Staff Member, Dukakis for President Campaign, 1988; 
     Associate, Williams & Connolly LLP, 1989-1991; Assistant 
     Professor, University of Chicago Law School, 1991-1994; 
     Tenured Professor, 1995-1997; Special Counsel, Senate 
     Judiciary Committee, 1993 (summer); Associate. Counsel to the 
     President, Executive Office of the President, 1995-1996; 
     Deputy Assistant to the President for Domestic Policy, 1997-
     1999; Visiting Professor, Harvard Law School, 1999-2001; 
     Professor of Law, 2001-Present; Dean, 2003-Present.
       Selected Activities and Honors: Public Member, 
     Administrative Conference of the United States, 1994-1995; 
     Litigation Committee Member, American Association of 
     University Professors, 2002-2003; Recipient, 2003 Annual 
     Scholarship Award of the American Bar Association's Section 
     of Administrative Law and Regulatory Practice, 2003; Board of 
     Trustees, Skadden Fellowship Foundation, 2003-Present; Board 
     of Directors, American Law Deans Association, 2004-Present; 
     Research Advisory Council, Goldman Sachs Global Markets 
     Institute, 2005-2008; Honorary Fellow, Worcester College, 
     Oxford University, 2005-Present; Board of Advisors, National 
     Constitution Center's Peter Jennings Project for Journalists 
     and the Constitution, 2006-Present; Member, New York State 
     Commission on Higher Education, 2007-2008; John R. Kramer 
     Outstanding Law School Dean Award, Equal Justice Works, 2008; 
     Recipient, Arabella Babb Mansfield Award, National 
     Association of Women Lawyers, 2008; Board of Directors, Equal 
     Justice Works, 2008-Present.

  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. KAUFMAN. Mr. President, I begin by thanking the Senator from 
Alabama for his courtesy. I appreciate him allowing me to go before him 
to speak.
  I rise today in support of the nomination of Elena Kagan to be 
Solicitor General of the United States. As we saw from her confirmation 
hearing in the Judiciary Committee more than a month ago, Elena Kagan 
has the piercing intellect, superb judgment, and wealth of experience 
necessary to be an outstanding Solicitor General.
  Dean Kagan's academic credentials could not be any more impressive. 
After graduating summa cum laude and Phi Beta Kappa from Princeton 
University, she attended the Harvard Law School, served as supervising 
editor of the Harvard Law Review, and graduated magna cum laude. After 
law school, she clerked first for Abner Mikva of the District of 
Columbia Circuit, and then Thurgood Marshall on the U.S. Supreme Court.
  That auspicious start to Dean Kagan's legal career was followed by 
private practice at one of America's leading law firms, and then 
service in the Office of the Counsel to the President. She has also 
been a policy adviser to the President, and a legal scholar of the 
first rank at both the University of Chicago and Harvard.
  As others have pointed out, her research and writing in the areas of 
administrative and constitutional law make her a leading expert on many 
of the most important issues that come before the Supreme Court.
  If that level of experience were not enough, she has spent the last 5 
years as the extraordinarily successful dean of the Harvard Law School, 
which by all accounts is not an easy place to govern.
  I note that several of that school's most conservative scholars have 
voiced their support for this nomination. They praise her vision and 
judgment, her incredible work habits, and her extraordinary management 
skills. Just as important, they point to her ability to bridge 
disagreement, by listening to all sides of an argument, engaging 
honestly with everyone concerned, and making decisions openly and with 
good reasons.
  No one disputes that Dean Kagan has served Harvard incredibly well. 
She will do the same for the Office of Solicitor General. Her 
accomplishments as a scholar and teacher are unmatched. Her skill as a 
leader and manager are beyond dispute.
  In fact, she has the support of every single Solicitor General who 
has served since 1985, including all three who worked in the previous 
administration. As they wrote to the Judiciary Committee:

       We are confident that Dean Kagan will bring distinction to 
     the office, continue its highest traditions and be a forceful 
     advocate for the United States before the Supreme Court.

  On a personal note, I want to add that earlier in her career, Dean 
Kagan spent some time working as an adviser to then-Senator Biden. I 
had the good fortune to get to know her in that context. Based on that 
experience, and everything I have seen since, I am absolutely convinced 
not only that she possesses enormous intellect and consummate skill, 
but also that she is a person

[[Page S3527]]

of the highest character and unquestioned integrity.
  In short, this is an outstanding nominee, and an outstanding 
nomination.
  On March 5, after thorough consideration, a bipartisan majority of 
the Judiciary Committee--13 to 3--voted to report Dean Kagan's 
nomination. I urge my colleagues to confirm her without delay, so she 
can begin the critical task of representing the United States in the 
Supreme Court.
  Mr. President, I yield the floor to the Senator from Alabama.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I wish to share my thoughts about the 
nomination of Elena Kagan to be Solicitor General.
  I have strong concerns about her nomination and will not support her 
nomination. I do believe the President, like all Presidents, should be 
entitled to a reasonable degree of deference in selecting executive 
branch nominees. But for some of the reasons I will set out, and one in 
particular, I am not able to support this nomination and will not 
support it.
  I believe her record shows a lack of judgment and experience to serve 
as the Nation's chief legal advocate--a position many have referred to 
as the Supreme Court's ``tenth Justice.'' It is also a position that 
has been called the best lawyer job in the world.
  Well, so far as I can observe, other than time in the White House 
Counsel's Office, Dean Kagan has only practiced law for 2 years in a 
real law firm practicing law. She had very limited experience in the 
things you would look for in a person of this nature.
  But let me discuss one defining moment in her career that I was sort 
of indirectly involved in because of legislation that was percolating 
in the Congress, in the Senate and in the House, and it means a lot to 
me.
  During her tenure as dean, Ms. Kagan barred the U.S. military from 
coming on the Harvard Law School campus to recruit young law graduates 
to be JAG officers in the U.S. military. That was from November of 2004 
through September of 2005. She barred them from coming and recruiting 
on campus while 150,000 of our finest men and women in this country 
were serving in combat in Iraq and Afghanistan and during a time in 
which 938 troops died in combat, preserving the rights of people like 
law deans, faculty, and students to have all the opinions they want. 
Her decision to bar the military from her campus during a time of armed 
conflict represents exceedingly poor judgment and leadership, 
particularly for someone who wants to lead the Department of Justice, 
the executive branch, and support the military of the United States.
  By refusing to allow military recruiters on the Harvard Law School 
campus, she placed her own opposition to military policies above the 
need of our military men and women to receive good legal advice, even 
from Harvard lawyers. And she did so at a time when the military, 
serving in conflicts in two foreign countries, was facing a host of 
complex legal issues. We are still fighting over them, for that 
matter. Maybe it would have helped if we had some of those graduates 
participating in them.

  I don't believe she ever had a basis to have barred the military from 
her school's campus, and I believe she should have had the judgment to 
realize the signal and the impact that was being sent to our military 
and to the students who want to support and serve in the military. 
Indeed, President Obama should have realized the signal he was sending 
by nominating her to this position.
  Flagg Youngblood wrote an op-ed in the Washington Times on January 30 
and this is what that op-ed stated. I will quote from that article. I 
think it makes a point. This is a military person:

       Since the Solicitor General serves as the advocate for the 
     interests of the American people to the Supreme Court, we're 
     expected to believe Kagan is the best choice? Her nomination 
     smacks of special interest, aimed at protecting the Ivy 
     League's out-of-touch elitism at the expense of students, 
     taxpayers, and our military alike.
       And what about the qualified students who desire to serve 
     our country?

  In the military, he is referring to.

       Second-class, back-of-the-bus treatment, that's what they 
     get, typically having to make time-consuming commutes to 
     other schools and, much worse, the ill-deserved disdain of 
     faculty and peers on their own campuses.
       The military, nobly and selflessly, stands alert at 
     freedom's edge, ready to defend our Nation in times of 
     crisis, and should therefore be honored, and, as most 
     Americans would argue, given preferential treatment, for 
     guarding the liberties that academics such as Kagan profess 
     to protect.
       That's precisely why Congress intervened more than a decade 
     ago, at the behest of a large majority of Americans who 
     recognize and appreciate what our military does, to fulfill 
     the Constitution's call for a common defense among the few, 
     enumerated Federal powers. And, to stop financing those who 
     undermine that fundamental duty. Yet, leftwing views like 
     Kagan's still disparage the sacrifices our military makes and 
     cause real, quantifiable harm to students and to our Nation 
     at taxpayer expense.

  Well, Mr. Youngblood's editorial--he felt deeply about that--
deserves, I think, extra force and credibility because he was affected 
by similar policies when he tried to participate in ROTC while 
attending Yale University during the 1990s. Due to Yale's exclusion of 
the ROTC from campus, Mr. Youngblood was forced to travel because he 
wanted to serve his country, 70 miles to commute to the University of 
Connecticut to attend the military ROTC classes. His ordeal--and many 
like it--led to the passage of the Solomon amendment, which is the 
Federal law that requires colleges to allow military recruiters on 
campus in order to be eligible for Federal funds.
  Well, let me say, that amendment didn't order any university to admit 
anybody or to allow anybody to come on campus; it simply says when you 
get a bunch of money from the Federal Government, you at least need to 
let the military come and recruit students if they would like to join 
the U.S. military and not exclude them.
  So the Solomon amendment is critically important here because it 
shows that Ms. Kagan's decision to block the military from Harvard Law 
School's campus was not just wrong as a matter of public and military 
policy. It was also clearly wrong as a matter of law. While dean at 
Harvard, Ms. Kagan was a vocal critic of the Solomon amendment. She 
called the law immoral. She wrote a series of e-mails to the Harvard 
Law School community complaining about the Solomon amendment and its 
requirement--horrors--that federally funded universities, if they 
continue to get Federal money, ought to allow military recruiters on 
campus or lose the Federal money. She thought that was horrible.
  I should note that Harvard receives hundreds of millions of dollars 
in Federal funding: $473 million in 2003, $511 million in 2004, and 
$517 million in 2005. That is a lot of money. The Federal highway 
budget that goes to the State of Alabama is about $500 million a year. 
Harvard University gets that much. By opposing the Solomon amendment, 
Ms. Kagan wanted Harvard to be able to receive these large amounts of 
taxpayers' dollars without honoring Congress's and President Clinton's 
judgment that military recruiters were eligible to come on campus. 
Under the Solomon amendment, Harvard has always had the option of 
declining Federal funds and relying on its big endowment--$34 billion--
and their tuition to fund the university. Much smaller institutions, 
such as Hillsdale College, have chosen to decline Federal funds to 
carry out their full academic independence. Harvard and Dean Kagan were 
not willing to do so. They wanted both. They wanted money and the right 
to kick out the military.
  I think she showed her legal judgment regarding the Solomon amendment 
in 2005 when she joined in an amicus brief of Harvard Law School 
professors to the U.S. Supreme Court in Rumsfeld v. FAIR, opposing the 
Solomon Amendment's application to Harvard Law School. Unlike the chief 
litigant--the formal appeal group--in the case, which raised a 
straightforward first amendment challenge to the Solomon amendment, the 
brief Ms. Kagan joined with other Harvard Law School professors made a 
novel argument of statutory interpretation that was too clever for the 
Supreme Court.
  Her brief argued that Harvard Law School did not run afoul of the 
letter of the Solomon amendment because Harvard law school did not have 
a policy of expressly barring the military from campus. Harvard, she 
argued, barred recruiters who discriminate from campus. Her brief 
reasoned that the Solomon amendment shouldn't apply

[[Page S3528]]

where the military wasn't singled out, but just ran afoul of a school's 
nondiscrimination policy.
  Ms. Kagan's argument was considered by the U.S. Supreme Court and the 
U.S. Supreme Court upheld the Solomon amendment. In specifically 
addressing Ms. Kagan's amicus brief with the Harvard professors, Chief 
Justice Roberts, writing for the Court, dismissed Ms. Kagan's novel 
statutory interpretation theory using these words:

       That is rather clearly not what Congress had in mind in 
     codifying the DOD policy. We refuse to interpret the Solomon 
     amendment in a way that negates its recent revision, and 
     indeed would render it a largely meaningless exercise.

  It is telling also to note that the brief she signed on to was unable 
to convince a single Justice of the Supreme Court to go along with it--
not even Justice Ruth Bader Ginsberg who was once general counsel to 
the American Civil Liberties Union.
  Let me mention one more thing people have mentioned about the Kagan 
decision to bar the military from recruiting on the Harvard campus. 
Some may have heard that the decision to bar the military was merely 
honoring a ruling of the Third Circuit, which briefly ruled against the 
Solomon amendment on a split decision in Rumsfeld v. FAIR. It is 
critical to note that the Third Circuit's ruling never went into effect 
because the case was appealed to the U.S. Supreme Court and the Third 
Circuit stayed enforcement of its decision. In other words, the Third 
Circuit said: Yes, we have rendered it. We understand our opinion is 
under appeal. We are not going to issue a mandate or an injunction that 
our opinion has to be followed. We will allow this case to be decided 
ultimately by the Supreme Court of the United States.
  No injunction was ever entered against enforcement of the Solomon 
amendment. Any decision by any dean to reject the Solomon amendment and 
not enforce it was not required by law. The law stayed in effect. In 
fact, Dean Kagan acknowledged that in an e-mail to the Harvard Law 
School community in 2005. There was a lot of controversy about this at 
Harvard. A lot of people weren't happy about it, you can be sure. She 
admitted in that e-mail that she had barred the military from campus, 
even though no injunction was in place, saying:

       Although the Supreme Court's action meant that no 
     injunction applied against the Department of Defense, I 
     reinstated the application of our anti-discrimination policy 
     to the military . . . ; as a result, the military did not 
     receive assistance during our spring 2005 recruiting season.

  So it is clear that the barring of the military took place while the 
Solomon amendment was, in effect, the law of the land. Her e-mail 
indicates she understood that at the time. As a result, students who 
wanted to consider a military career were not allowed to meet with the 
recruiters on campus. The military was even forced to threaten Harvard 
University's Federal funding in order to get the military readmitted to 
campus as time went on. This was all a big deal. The Congress was 
talking about it. We had debate on it right here on the floor and in 
the Judiciary Committee, of which I am a member.
  I think a nominee to be the Department of Justice's chief advocate 
before the Supreme Court, to hold the greatest lawyer job in the world, 
should have a record of following the law and not flouting it. The 
nominee should, if anything, be a defender of the U.S. military and not 
one who condemns them. Ms. Kagan's personal political views, I think, 
are what led to this criticism of the military, this blocking of the 
military. She opposed a plain congressional act that was put into place 
after we went through years of discussion and pleading with some of 
these universities that were barring the military. They had refused to 
give in, so we passed a law that said, OK, you don't have to admit the 
military, but we don't have to give you money, and we are not giving 
you any if you don't admit them. They didn't like that. So Ms. Kagan's 
refusal of on-campus military recruiters went against a congressional 
act. Her actions were an affront to our men and women then in combat 
and now in combat. The Solicitor General should be a person who is 
anxious and eager and willing to defend these kinds of statutes and to 
defend our military's full freedom and right to be admitted to any 
university, even if some university doesn't agree with the 
constitutional and lawfully established policies of the Department of 
Defense.
  I would also raise another matter, and I think this is important. If 
there was some other significant showing, I think, of competence or 
claim on this position, I would be more willing to consider it. If she 
were among the most proven practitioners of legal skill before Federal 
appellate courts or had great experience in these particular positions, 
maybe I could overcome them. Maybe if she had lots of other cases in 
her career that could show she had shown wisdom in other areas, but 
that is not the case. She has zero appellate experience. Dean Kagan has 
never argued a case before the U.S. Supreme Court, which isn't unusual 
for most American lawyers, but for somebody who wants to be the 
Solicitor General whose job it is to argue before the Supreme Court, it 
is not normal. But for that matter, she has never argued any appellate 
case before any State supreme court.
  In fact, she has never argued a case on appeal before any appellate 
court, whether Federal, State, local, tribal or military. That is a 
real lack of experience. When asked about this lack of experience at 
our hearing, Ms. Kagan tried to compare her record to other nominees 
saying this:

       And I should say, Senator, that I will, by no means, be the 
     first Solicitor General who has not had extensive or, indeed, 
     any Supreme Court argument experience. So I'll just give you 
     a few names:
       Robert Bork, Ken Starr, Charles Fried, Wade McCree. None of 
     those people had appeared before the courts prior to becoming 
     solicitor general.

  Well, Ms. Kagan's record hardly compares to the names she cited in 
her own defense.
  Regarding Charles Fried, Ms. Kagan was wrong in stating that he never 
argued to the Supreme Court. Although Professor Fried did not have much 
in the way of litigation experience before being nominated, he had 
argued to the Supreme Court while serving as Deputy Solicitor General 
in Rex Lee's Solicitor General's Office. Accordingly, Mr. Fried had two 
things Ms. Kagan lacks--Supreme Court experience and experience within 
the Solicitor General's Office.
  Ms. Kagan also compared herself to Ken Starr and Wade McCree, both of 
whom had a wealth of appellate experience that she lacks. Prior to his 
nomination to be Solicitor General, Ken Starr served as a U.S. Court of 
Appeals judge in the District of Columbia--an appellate court--from 
1983 to 1989, a court before which the best lawyers in the country 
appear and argue cases. He had to control and direct their argument, 
and as a result he got to see and have tremendous experience in that 
regard as an appellate judge. Wade McCree had even more experience 
before his nomination. Mr. McCree served as a U.S. Court of Appeals 
judge in the Sixth Circuit, from 1966 to 1977, 11 years.
  Robert Bork also had a strong litigation background before his 
nomination. He was one of the most recognized, accomplished antitrust 
lawyers in private practice in the country.
  We should not forget the critically important role the Solicitor 
General plays in our legal system. As Clinton-era Solicitor General 
Drew Days wrote in the Kentucky Law Journal, ``the Solicitor General 
has the power to decide whether to defend the constitutionality of the 
acts of Congress or even to affirmatively challenge them.'' That is 
quite a power--the power to defend statutes in the Supreme Court, or 
even challenge them in the Supreme Court.
  This is a very critical job within our Government. I think it 
deserves a more experienced lawyer, one with a record that shows more 
balance and good judgment. I think Ms. Kagan's lack of experience is an 
additional reason I am uncomfortable with the nomination. I think 
nominees have to be careful about expressing opinions on matters that 
might come before them in the future. But for a nonjudicial position, 
and concerning issues which were commented on today, Senator Specter 
believes she has been less than forthcoming. Had she been more 
forthcoming, I might have been a little more comfortable with the 
nominee. Her failure to be responsive to many questions, I think, 
causes me further concern.
  To paraphrase a well-known statement of then-Senator Biden--now our

[[Page S3529]]

Vice President--the job of the Solicitor General does not lend itself 
to on-the-job training. One time, Rudy Giuliani was arguing about who 
should be his replacement as U.S. Attorney in Manhattan, and they were 
discussing people with very little experience. He said: I think it 
would be nice if they were able to contribute to the discussion every 
now and then.
  I think it is good to have some experience. So I don't see a sense of 
history here to overcome what I consider to be bad judgment on a very 
important matter. I supported the nomination of Eric Holder. I like him 
and I hope he will be a good Attorney General; I think he will. I 
intend to support most of the other nominees to the Department of 
Justice. I certainly hope to. But I am not able to support Elena 
Kagan's nomination in view of her positions concerning the ability of 
the U.S. military to come on the campus of Harvard and actually recruit 
the young men and women who might wish to join the military. I think 
that was wrong. I also believe she has a very significant lack of 
relevant experience for the position.
  I yield the floor.
  Mr. INHOFE. I oppose the nomination of Elena Kagan for Solicitor 
General of the United States. I previously spoke against her on the 
floor and talked about the reason I was opposed to her as well as David 
Ogden for his representation of the pornography industry. It is kind of 
hard for me to understand how someone who is the No. 2 position in the 
Justice Department has a history of representing the pornography 
industry. Then, of course, the nominations of Dawn Johnson and Thomas 
Perrelli I am opposed to because of their strong pro-abortion 
positions.
  But as far as Elena Kagan, it is important for those who are going to 
vote in favor of her to know some of the things that have happened in 
her background. Because of its great importance, the office of 
Solicitor General is often referred to as the 10th Supreme Court 
Justice.
  When serving as a dean of Harvard Law School, she demonstrated poor 
judgment on a very important issue to me. Ms. Kagan banned the U.S. 
military from recruiting on campus. She and other law school officials 
sued to overturn the Solomon amendment. The Solomon amendment 
originated in the House. Congressman Jerry Solomon had an amendment 
that said no university could preclude the military from trying to 
recruit on campus. This was a direct violation of the amendment. She 
actually was claiming that the Solomon amendment was immoral. She filed 
an amicus brief with the Supreme Court opposing the amendment. The 
Court unanimously ruled against her position and affirmed that the 
Solomon amendment was constitutional.
  The Department of Justice needs people who adhere to the law and not 
to their ideology. While certainly I oppose many of the positions taken 
by these nominees, I am even more concerned that their records of being 
ideologically driven will weaken the integrity and neutrality of the 
Department of Justice.
  I oppose the nomination of Elena Kagan.
  Mr. HATCH. Mr. President, today I will vote to confirm the nomination 
of Elena Kagan to be the next Solicitor General of the United States. 
Because the Constitution gives the appointment power to the President, 
not to the Senate, I believe the President is owed some deference so 
long as his nominees are qualified. This standard applies particularly 
to his executive branch appointments. I will vote for the nomination 
before us because I believe this standard is satisfied.
  Dean Kagan would not be the first Solicitor General to have come from 
legal academia. Walter Dellinger came to the Clinton administration 
from Duke, Rex Lee served in the Reagan administration after founding 
Brigham Young University School of Law.
  Nor would Dean Kagan be the first Solicitor general to have come to 
the post from Harvard. Archibald Cox came from the Harvard law faculty 
to serve as Solicitor General in the Kennedy administration. Erin 
Griswold became Solicitor General in 1967 after a dozen years as a 
Harvard law professor and another 19 as dean. Charles Fried, who taught 
at Harvard for nearly a quarter century before becoming Solicitor 
General in 1985, went back to teaching and is now a colleague of Dean 
Kagan. I was pleased to see him at her confirmation hearing.
  I would note two other things about Dean Kagan's qualifications. 
First, she has no experience arguing before any court. I have long 
believed that prior judicial experience is not a prerequisite for 
successful judicial service. Justice Felix Frankfurter taught at 
Harvard Law School from 1921 until President Franklin D. Roosevelt 
appointed him to the Supreme Court in 1939. During that time, by the 
way, he turned down the opportunity to become Solicitor General. But 
Justice Frankfurter famously wrote in 1957 that the correlation between 
prior judicial experience and fitness for the Supreme Court is, as he 
put it, ``precisely zero.''
  But courtroom argument, especially appellate advocacy, is a more 
specific skill that is related more directly to the Solicitor General's 
job. As such, Dean Kagan's complete lack of such experience is more 
significant. Which leads me to the second point that, despite her lack 
of courtroom experience, every living former Solicitor General has 
endorsed her nomination. They know better than anyone what it takes to 
succeed in the post and believe she has what it takes.
  Speaking of endorsements, Dean Kagan is also supported by a number of 
lawyers and former government officials who are well known in 
conservative legal circles. These include Peter Keisler, who served as 
Assistant Attorney General and Acting Attorney General under President 
George W. Bush; Miguel Estrada, prominent Supreme Court practitioner 
and a former nominee to the U.S. Court of Appeals; Jack Goldsmith, who 
headed the Justice Department's Office of Legal Counsel under the 
previous President; and Paul Cappuccio, who served in the Justice 
Department during the first Bush administration and is now general 
counsel at TimeWarner.
  A few other issues have given me pause during the confirmation 
process. When Dean Kagan served as a law clerk for Justice Thurgood 
Marshall, she wrote a memo in a case challenging the constitutionality 
of the Adolescent Family Life Act. That statute provided funds for 
demonstration projects aimed at reducing teen pregnancy. Dean Kagan 
objected to including religious groups in such projects, insisting that 
``[i]t would be difficult for any religious organization to participate 
in such projects without injecting some kind of religious teaching.'' 
She actually argued for excluding all religious organizations from 
programs or projects that are, in her view, ``so close to the central 
concerns of religion.'' This is a narrow-minded, I think even ignorant, 
view of religious groups and her recommendation of discrimination 
against them comes close, it seems to me, to raising a different kind 
of constitutional problem. Thankfully, the Supreme Court did not follow 
her suggestion and instead upheld the statute. When asked about it at 
her hearing in February, Dean Kagan said that, looking back, she now 
considers that to be, as she put it, ``the dumbest thing I ever 
heard.'' With all due respect, I agree.
  Dean Kagan took a very strong, very public stand against the so-
called Solomon Amendment, which withholds federal funds from schools 
that deny access to military recruiters. Harvard denied such access in 
protest of the military's exclusion of openly gay servicemembers. Dena 
Kagan chose to allow access only under the threat of the entire 
university losing federal money. But she condemned in the exclusion 
policy in the strongest terms, calling it repugnant and ``a profound 
wrong--a moral injustice of the first order.'' In her personal 
capacity, she joined other law professors on a friend of the court 
brief in the lawsuit challenging the policy. In 2006, the Supreme Court 
upheld the Solomon Amendment, specifically rejecting the position Dean 
Kagan had taken, saying: ``We refuse to interpret the Solomon Amendment 
in a way that . . . would render it a largely meaningless exercise.'' 
Dean Kagan is entitled to take that or any other position on that or 
any other issue she chooses. But it raises the question whether she 
would be able, as the Solicitor General must, to put aside even such 
strongly held personal views and vigorously defend only the legal 
interests of the United States. She assured the Judiciary Committee 
that she could do that, even

[[Page S3530]]

saying that she would have defended this very statute, the Solomon 
amendment, in the way that Solicitor General Paul Clement did. I note 
that Paul Clement is one of the former Solicitors General endorsing 
Dean Kagan's nomination.
  When Dean Kagan's nomination came up for a vote in the Judiciary 
Committee, I joined the ranking member, Senator Specter, in passing 
because of concerns that she had been insufficiently forthcoming in 
answering questions during her hearing and written questions afterward. 
I applaud Senator Specter for pursuing this, for meeting with Dean 
Kagan again, and for pushing her for more information and more thorough 
answers. She has provided some additional insight into her views, 
though I respect the fact that her additional effort will not satisfy 
everyone.
  All in all, I have concluded that I can support Dean Kagan's 
nomination. She is qualified to serve as Solicitor General and I have 
not seen enough to overcome the basic deference that I believe I must 
give the President. As such, I will vote to confirm her.
  Mr. KYL. The nomination of Elena Kagan to be Solicitor General of the 
United States is not without controversy. She has a stellar academic 
record which has been discussed. Following law school, Ms. Kagan served 
as a judicial clerk for Judge Abner Mikva on the U.S. Court of Appeals 
and for Supreme Court Justice Thurgood Marshall. After her clerkships, 
Ms. Kagan joined the DC law firm Williams and Connolly.
  Ms. Kagan left private practice to join the faculty of the University 
of Chicago Law School. In 1995, Ms. Kagan began her service in the 
Clinton administration as associate counsel to the President and later 
as deputy assistant to the President for Domestic Policy. In 1999, she 
left the White House and returned to legal academia, joining the 
faculty at Harvard Law School. In 2003, Ms. Kagan was named Dean of 
Harvard Law School, a role in which she was charged with overseeing 
every aspect of the institution, academic and non-academic alike.
  She is well regarded by those who have followed her career.
  I am particularly troubled, however, by two matters. First, Dean 
Kagan's nomination has rightfully received criticism because of her 
stance on the Solomon amendment. Dean Kagan joined two briefs 
concerning the legality of the Solomon amendment, one on an amicus 
brief to the Third Circuit in support of the appellants, FAIR, in the 
case FAIR v. Rumsfeld, and the other an amicus brief in support of FAIR 
when the case reached the Supreme Court. By a vote of 9 to 0, the 
Supreme Court upheld the Solomon Amendment and rejected the argument 
presented in the brief that Dean Kagan signed. See Rumsfeld v. FAIR, 
547 U.S. 47, 55-57, 2006. Also, I would like to make one comment about 
Dean Kagan's actions as dean in this case. As Senator Sessions pointed 
out earlier today, because the case was appealed to the Supreme Court, 
the Third Circuit stayed enforcement of its decision. Therefore, the 
Solomon amendment stayed in effect. Dean Kagan acknowledged this in a 
September 20, 2005, email to the Harvard Law School community, where 
she admitted that she had barred the military from campus even though 
no injunction was in place: ``Although the Supreme Court's action 
[granting review] meant that no injunction applied against the 
Department of Defense, I reinstated the application of our anti-
discrimination policy to the military . . . . as a result, the military 
did not receive [Office of Career Services] assistance during our 
spring 2005 recruiting season.'' Thus, Ms. Kagan barred the military 
from recruiting on campus even though the Solomon amendment remained 
the law of the land.
  Second, I am troubled by Dean Kagan's lack of appellate experience. 
She has not argued even a single case before the Supreme Court or 
before any federal or state appellate court. I am quite concerned about 
her complete lack of appellate advocacy. I am, nevertheless, willing to 
give her the benefit of the doubt, primarily because of the views of 
seasoned advocates who know her well and who know the Court well.
  All three Solicitors General appointed by President Bush--Ted Olson, 
Paul Clement, and Greg Garre--signed a letter, January 27, 2009, 
stating that they ``are confident that Dean Kagan will bring 
distinction to the office, continue its highest traditions and be a 
forceful advocate for the United States before the Supreme Court.'' 
They added, ``[h]er brilliant intellect will be respected by the 
Justices, and her directness, candor and frank analysis will make her 
an especially effective advocate.''
  Additionally, among her other supporters are two highly respected 
conservative lawyers who have known Dean Kagan since the beginning of 
her legal career. The first is Peter Keisler, who served as Acting 
Attorney General under President Bush and held a number of other top 
positions in the Bush Justice Department. He clerked on the U.S. 
Supreme Court with Elena Kagan, and wrote the following in support of 
her nomination, January 30, 2009: ``[her] combination of strong 
intellectual capabilities, thoughtful judgment, and her way of dealing 
respectfully with everybody . . . are . . . among the many reasons she 
will be a superb Solicitor General, and will represent the government 
so well before the Court.''
  Second, Miguel Estrada has known Elena Kagan since law school. He 
wrote in support of her nomination, January 23, 2009: ``Having worked 
as an attorney in the Solicitor General's Office under Solicitors 
General of both parties, I am also confident that Elena possesses every 
talent needed to equal the very best among her predecessors.''
  I expect a Solicitor General nominated by a President of a different 
political party to hold views that diverge from my own; but I also 
expect that nominee to be qualified for the position, able to 
faithfully execute the responsibilities of the office, and be 
forthright and honest with members of Congress. She has assured us that 
her ideology will not interfere with her decisions as Solicitor 
General. I will closely follow Dean Kagan's tenure as Solicitor 
General. I will hold her to her commitments.
  I would like to make clear that my vote for Dean Kagan is only for 
the position of Solicitor General, and my vote does not indicate how I 
would vote for her if she were nominated for any other position, 
especially a position that is a lifetime appointment. Specifically, 
according to numerous news accounts, Dean Kagan is expected to be 
considered for nomination to the Supreme Court if an opening were to 
occur during the Obama administration. If she were nominated, her 
performance as Solicitor General would be critical in my evaluation of 
her suitability for the Supreme Court. My decision whether to support 
or oppose her would be strongly influenced by the decisions made by her 
as Solicitor General, such as the cases for which she does and does not 
seek review, the positions she argues, and the bases for her arguments. 
If she approaches her job as Solicitor General ideologically or argues 
inappropriate positions, I will not hesitate to oppose her nomination.
  Mr. WHITEHOUSE. Mr. President, I wish to urge my colleagues to 
support the nomination of Elena Kagan to be the Solicitor General. In 
doing so, I will make four brief points.
  First, Dean Kagan is extraordinarily qualified as a lawyer with a 
profound understanding of the issues that dominate the Supreme Court's 
docket. She has received enormous praise for her leadership of Harvard 
Law School as dean, in which position she reinvigorated one of the 
premier legal institutions in our country. And of course Dean Kagan is 
a scholar of the highest order on questions of administrative and 
constitutional law. She clearly has the intellectual background and 
sharp intelligence necessary to represent the interests of the United 
States with the utmost skill and clarity. She testified in her hearing 
and in numerous followup questions that she will put the interests of 
the United States ahead of any of her own beliefs and defend 
congressional statutes with the vigor and force we expect of the 
office. She has worked in private practice, as a clerk to the Supreme 
Court, and as a counsel in the White House. I applaud her willingness 
to return to Government service. Now, some critics have pointed out 
that she has not argued before the Supreme Court before. As an attorney 
who has argued before that Court, I can attest that appearing before 
the Court indeed is a daunting experience. But Solicitors General Ken 
Starr, Charles Fried, Robert Bork, and Wade McCree similarly had not 
argued before the

[[Page S3531]]

Court. This fact leaves me with no doubt that Dean Kagan will meet the 
highest expectations of her and that she will excel as Solicitor 
General.
  Second, I would point out that a very large number of leading lawyers 
have joined me in concluding that Dean Kagan will be an excellent 
Solicitor General. Dean Kagan's nomination to be Solicitor General has 
been endorsed by every Solicitor General who served from 1985 to 2009--
Charles Fried, Ken Starr, Drew Days, Walter Dellinger, Seth Waxman, Ted 
Olson, Paul Clement, and Greg Garre. That is not the Solicitors General 
from every Democratic administration--that is every Solicitor General 
over the last 24 years, including conservatives Ted Olson and Ken 
Starr. Surely their expert opinions should provide a strong indication 
that Dean Kagan will be an excellent Solicitor General.
  Third, it is worth noting the historic nature of this nomination. If 
confirmed, Dean Kagan would become the first woman confirmed by the 
Senate to hold the Office of Solicitor General of the United States. 
Dean Kagan has spent her lifetime breaking glass ceilings, and she is 
poised to break another for the benefit of generations of women to 
come.
  Finally, I would like to commend Chairman Leahy for his continuing 
determination to confirm as many Department of Justice nominees as 
quickly as possible. The United States deserves the best advocate 
possible before the Supreme Court. We should confirm Dean Kagan and let 
her get to work. And we should swiftly confirm the remaining nominees 
to the Department of Justice. I look forward to continuing to work with 
Chairman Leahy in that effort.
  Mr. BUNNING. Mr. President, I rise today to speak on the nomination 
of Dean Elena Kagan of the Harvard School of Law to be Solicitor 
General of the United States. It is with regret that I announce that I 
will not be able to support this nomination.
  My first reason is that it appears that Dean Kagan's nomination 
process is not yet complete. My colleague, the ranking member of the 
Senate Judiciary Committee Senator Arlen Specter, has already spoken on 
this at some length, but I agree with his thoughts. He asked Dean 
Kagan, in writing, to expand upon responses she supplied to the 
Judiciary Committee. In the estimation of several committee members and 
others, such as myself, she did not provide an adequate response to 
these requests. I find that it is not possible for me to vote to 
advance the nomination of someone who has not yet completed the 
nomination process.
  However, we do know some things about Dean Kagan's beliefs. For one 
thing, she has shown a disdain for the policy contained in the Solomon 
amendment. The Solomon amendment bars federal aid to universities that 
prevent military recruitment on campus. This is a good policy and 
fairly supports our military and the men and women that are a part of 
it. Dean Kagan defends her position by saying that she opposes the 
recruiters because of the ``Don't Ask, Don't Tell'' policy. Whatever 
her concerns with that policy, it does not seem wise or fair to shut 
out our nation's military recruiters. By denying recruiters access to 
America's colleges and universities, our military is weakened. This is 
the kind of wrongheaded approach that I thought had died out years ago. 
Unfortunately, it is still alive in the person of the President's 
nominee to head one of the top positions in the Department of Justice.
  Dean Kagan has also expressed an unsettling attitude towards religion 
and religious organizations. In a memo as a law clerk on the subject of 
which organizations should receive funding to counsel teenagers on 
pregnancy, she wrote ``It would be difficult for any religious 
organization to participate in such projects without injecting some 
kind of religious teaching.'' She added ``When government funding is to 
be used for projects so close to the central concerns of religion, all 
religious organizations should be off limits.'' This seems like an 
incredibly insensitive, insulting, and impractical view to hold. Does 
Dean Kagan feel that only atheists are fit to handle government funds? 
Would she support some sort of a ``religious commitment'' litmus test? 
This seems like an attitude that would be unfit for a high ranking 
member of our government.
  It is for these reasons that I cannot support this nomination. I urge 
my colleagues to join me in opposition.
  Mr. CORNYN. Mr. President, I rise to share my views on the nomination 
of Elena Kagan, who has been nominated by President Obama to serve as 
Solicitor General of the United States.
  As my colleagues know, I have supported several of President Obama's 
executive nominees and opposed a few others. I believe that it is my 
constitutional duty to carefully review the record and qualifications 
of each nominee, while giving an appropriate amount of deference to the 
President when a nominee is objectively qualified for the position to 
which they are nominated, regardless of political orientation.
  For example, I voted to confirm Secretary of State Hillary Clinton. I 
likewise voted to confirm Ambassador Ron Kirk to be U.S. Trade 
Representative.
  Unfortunately, I could not reach the same conclusion with Attorney 
General Eric Holder regarding his fitness to serve as the Nation's top 
law enforcement official.
  And, for the reasons outlined below, I cannot support Elena Kagan's 
nomination to be Solicitor General. My primary concern with Ms. Kagan's 
nomination is her continued failure to respond to legitimate and 
relevant questions posed by me and others.
  As I explained when the Judiciary Committee approved Ms. Kagan's 
nomination on March 5:

       Ms. Kagan notes how much she respects the Senate and its 
     institutional role in the nominations process. Regrettably, 
     her refusal to answer legitimate and relevant questions posed 
     by me and others belies this claimed respect. For this 
     reason, I will be voting `no' this morning and do not believe 
     that her nomination should be advanced. I hope that Ms. Kagan 
     reconsiders her position because I believe that she is 
     otherwise qualified to serve as Solicitor General.

  In response to Senator Specter's subsequent request to supplement her 
answers in writing, Ms. Kagan returned a 22-page letter purporting to 
do just that. But I concur with Senator Specter, the ranking member on 
the Judiciary Committee, who has determined that too many of Ms. 
Kagan's answers to relevant and legitimate questions remain incomplete 
and unresponsive. As Senator Specter correctly notes, this is about the 
Senate's institutional prerogatives.
  In sum, I do not believe that Ms. Kagan has provided the basic level 
of responsiveness that the Senate's constitutional advice and consent 
function demands. And for that reason I am forced to vote against her.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, I don't know if there are other Members are 
coming. While the Senator from Alabama is on the floor, let me note 
that I heard there may be one or two more Members coming over. I hope 
they will come soon. I am going to be here, as I have a series of 
meetings until well after 6, but I know a number on both sides have 
flights to catch.
  Once everybody has spoken, I will suggest that we yield back all time 
and have a vote. I know the Senator from Alabama had specific time set 
aside and didn't use all of it. I hope he might join me in calling for 
other Senators who wish to speak to come over. If they are to speak, it 
would be better to do it sooner rather than later. It would be a great 
help to a number of Senators on both sides of the aisle.
  Mr. SESSIONS. If the Senator will yield, the chairman of the 
Judiciary Committee has set up ample time for this to be discussed 
today. I thank him for that. Senator Specter, a little while ago, 
indicated that he thought the time should be yielded back and we could 
vote as early as 5. He hoped that would be acceptable, and he urged 
people to come down if they have comments. I will join him and you in 
urging people to come down if they have remarks to make. It would be 
more convenient, I think, for people to have an early vote.
  Mr. LEAHY. Mr. President, I thank my friend from Alabama. I urge 
Members--if there are others--not to wait until 5. And I ask those on 
the other side of the aisle, if you wish to speak, please do so as soon 
as possible, because at some point--and we will do this only with 
notice to the Republican

[[Page S3532]]

side--I am going to ask unanimous consent to yield back all time and go 
to a vote.
  In the meantime, I suggest the absence of a quorum and ask that the 
time be equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. REED. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REED. Mr. President, it is a distinct honor for me to rise in 
support of Dean Elena Kagan and her nomination to be Solicitor General 
of the United States. As most of my colleagues are aware, she has had 
an illustrious legal career that includes clerking for Judge Abner 
Mikva on the U.S. Court of Appeals for the District of Columbia and 
also Justice Thurgood Marshall on the U.S. Supreme Court. She has 
obtained tenure in two of the most distinguished law schools in the 
country: the University of Chicago and Harvard Law School. She served 
as Special Counsel in the Clinton administration, and now she is dean 
of the Harvard Law School.
  I had the privilege of getting to know Dean Kagan through alumni 
activities at Harvard Law School. She is much younger than I, obviously 
much smarter than I, but we still are alumni of the same law school. 
She is extraordinarily qualified to be the Solicitor General based on 
her intellectual gifts but also in terms of her temperament, her 
professionalism, her experience, and her innate sense of fairness and 
decency. She will represent the United States well, not only with her 
legal analysis but with her commitment to the principles that sustain 
this country based on the Constitution of the United States. There are 
many qualities that make her ideally suited for this job--her 
temperament, her maturity, her judgment, her success in leading one of 
the most complicated faculties in the country.
  Most lawyers have opinions, so when you put 100 or so of them 
together, you have a lot of different viewpoints. She has led Harvard 
Law School with great skill and with great success. I think it will be 
an indication of her ability to lead the Solicitor General's office and 
to harmonize in principle, reaching substantive agreements, the 
critical issues that are debated within the this important office and 
going forward.
  In the 5 years she has been dean of the law school, she also received 
great acclaim for bridging the differences in approaches and viewpoints 
at the school, with hiring new faculty members with diverse viewpoints, 
different from hers, recognizing that the heart and soul of an academic 
institution is debate, vigorous debate, not orthodoxy but vigorous 
debate, and she has done that.
  She has been very attentive to the needs of the students there. I was 
particularly impressed when I visited the law school and had a chance 
to meet some veterans of the U.S. military who had served in Iraq and 
Afghanistan and who were then current law students at Harvard. Their 
praise for the dean, both her personal qualities and her leadership 
qualities, was unstinted. They saw her as someone who deeply 
appreciated their sacrifice as soldiers, marines, sailors, and airmen 
in the service of this Nation. They understood this not just from what 
she said, but from her attitude, her deep and profound respect for 
their service. I thought that was a particularly telling point, 
commending her to me in a very real and very immediate sense.
  What is also particularly striking about Dean Kagan is that her 
entire life's work as a legal scholar shows a deep and profound 
commitment to the Constitution of the United States which governs us 
all. She has committed herself to giving it meaning, to making it a 
force to advance the ideals of this country. She brings not only great 
respect for the Constitution, great knowledge of the Constitution, but 
also the understanding that this is a document that unites us--our 
aspirations, our ideals, our hopes, our wishes for the future--it links 
us to the past and it unites us to go forward into the future.
  She was asked by officials at my other alma mater, West Point, in 
October 2007 to speak to the cadets because they recognize that this is 
a woman of rare talent as a lawyer and rare judgment, someone who 
understands that we live in a government of laws, not of men and women. 
That is a fundamental lesson that must be imparted to those who take an 
oath to protect with their lives the Constitution of the United States, 
to recognize that we are a nation of laws, and soldiers, more than 
anyone else, have to recognize that because it is their lives that give 
us the opportunity to live under this Constitution of laws.
  She used as a touchstone for this speech a place on campus at West 
Point called Constitution Corner. It was the gift of the West Point 
class of 1943. It was to recognize that, in fact, soldiers in this 
great country are servants to the Constitution.
  One of the five plaques at this site is entitled ``Loyalty to the 
Constitution,'' which basically states what all of us who have been in 
the military are keenly aware, that the United States broke with an 
ancient tradition. Instead of swearing loyalty to a military leader, 
American soldiers swear their loyalty to the Constitution of the United 
States. I had that rare privilege on July 3, 1967, when I took the oath 
as a cadet at West Point.
  The rest of her speech explored the fundamental rule of law, giving 
purpose and context to what these young men and women, soldiers in our 
Nation, will do when they lead other soldiers to defend--not territory, 
not business enterprises, but the foundation of our country--the 
Constitution of the United States.
  She mentioned examples of people who have put the Constitution before 
their own personal comfort and privilege--President Nixon's Attorney 
General Archibald Cox, who refused to go along with summary firings in 
the wake of the Watergate scandal, and President George W. Bush's 
Attorney General John Ashcroft, our former colleague, both of whom did 
their best to uphold the rule of law in very trying circumstances. 
These are examples that I think resonated very well with the cadets.
  I believe the dean is someone who has not just the skill, not just 
the mind, but the heart to serve with distinction as Solicitor General 
of the United States. She will be a forceful and powerful advocate, not 
for the administration, not for any small, narrow cause, but for the 
Constitution of the United States. I believe that is the fundamental 
role of the Solicitor General, one she will perform admirably.
  I recommend without reservation Dean Kagan to this body. I hope we 
all rise to support her. If confirmed as the first female Solicitor 
General of the United States, we will be extremely fortunate to have 
her representing the people of the United States before the Supreme 
Court of the United States.
  Mr. President, I yield the floor. I suggest the absence of a quorum 
and ask that the time be equally divided between both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. BURRIS. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Tester). Without objection, it is so 
ordered.