[Congressional Record Volume 156, Number 84 (Monday, June 7, 2010)]
[Senate]
[Pages S4610-S4611]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            KAGAN NOMINATION

  Mr. LEAHY. Madam President, 3 weeks from now the Senate Judiciary 
Committee will hold the confirmation hearing for President Obama's 
nomination of Elena Kagan to succeed Justice John Paul Stevens as an 
Associate Justice of the Supreme Court of the United States.
  Last year, after reviewing her record, a bipartisan majority of the 
Senate voted to confirm Elena Kagan to be the Solicitor General of the 
United States, actually the first woman in America's history to serve 
as Solicitor General. As the distinguished Presiding Officer knows, 
oftentimes the Solicitor General is referred to as the ``Tenth 
Justice''. Not only are we familiar with Elena Kagan from our review of 
her nomination last year, but we have already received an extraordinary 
amount of information about her in connection with this nomination.
  Last week we received nearly 50,000 pages of documents from the 
Clinton Library related to Elena Kagan's service and her significant 
role in the Clinton White House. My initial review of these documents 
shows her to have been a pragmatic and thoughtful adviser to President 
Clinton as she helped him to advance the goals of his administration.
  As a law clerk to Justice Thurgood Marshall, as a professor, as a 
policy adviser to the President, and dean of Harvard Law School, and as 
Solicitor General of the United States, she appeared to have a clear 
grasp of how to apply her abilities to meet the challenges of each of 
these varied positions. I point out in that regard not only is she the 
first woman to become Solicitor General, she was the first woman to 
become dean of the Harvard Law School.
  I went back and I doublechecked with my staff, Bruce Cohen, Jeremy 
Paris, and others on my staff, and I said: How does the information we 
have received on this nomination compare with the Roberts or Alito 
nominations when there was a Republican President? I am told the 
committee has received more information from the administration than 
was made available at this point in the confirmation process for either 
the Roberts or Alito nominations.
  Last year we considered President Obama's nomination of Justice Sonia 
Sotomayor. Although she was confirmed with 68 votes, I was disappointed 
that so many chose to oppose her historic nomination, the first 
Hispanic to the Supreme Court, only the third woman.
  I suspected and do suspect that many of those who voted against her 
confirmation will come to regret their action, if they do not already. 
Regrettably, many of the Senate Republicans, now that President Obama 
is in the White House, seem to want to apply a different standard from 
when they were considering President Bush's nominees to the Supreme 
Court.
  As we begin the process of considering a new nominee to the Supreme 
Court, I candidly admit that after watching the unfounded opposition to 
the Sotomayor nomination last year, I would not be surprised if a 
majority of Republican Senators were to vote against Solicitor General 
Elena Kagan, despite her qualifications and no matter how she answers 
questions during the course of the hearing. I have joked that if 
President Obama nominated Moses, the lawgiver, or Mother Theresa, 
Senate Republicans would vote against the nomination. Such a 
willingness of many Republican Senators to heed the extreme ideological 
test imposed by the far right.
  Indeed, were Justice Sandra Day O'Connor the nominee pending today, 
or Justice David Souter, or Justice John Paul Stevens, or, for that 
matter, Justice Anthony Kennedy, it is a sad reality that a majority of 
current Republican Senators would likely vote against their 
confirmations, as well, for failing the extreme ideological litmus 
test. Each of these Justices was nominated by a Republican President. I 
voted in favor of each of them.
  Each of these Justices served or are serving now with distinction, 
and all still contribute to the Nation and its courts. The American 
people are fortunate to have had all of them serve on the Supreme 
Court.
  Regrettably, most Senate Republicans, now that President Obama is in 
the White House, seem to want to apply a different standard from when 
they were considering President Bush's nominees to the Supreme Court. I 
welcome questions to Solicitor General Kagan about judicial 
independence. But let's be fair. Let us listen to her answers. No one 
should presume that this intelligent woman who has excelled during 
every part of her varied and distinguished career lacks the 
independence to serve on the U.S. Supreme Court. Indeed, many of the 
justices who are most revered in this country for their independence 
came to the Court with a background not unlike that of the nominee.

[[Page S4611]]

  Not so long ago, Republicans Senators contended that a nominee's 
judicial philosophy was irrelevant. All that should matter, they 
claimed, was that the nominee was qualified, had gone to elite schools, 
and had good character. Well, Solicitor General Kagan excelled at 
Princeton, Oxford, and Harvard Law School. As I have mentioned, she was 
the first woman to serve as Dean of Harvard Law School in its 193-year 
history, and was respected and admired for her inclusiveness. She is 
the first woman to serve as Solicitor General of the United States in 
that office's 140-year history. Throughout her career, no one has 
questioned her character or her integrity. She obviously meets and 
exceeds the qualifications standard previously espoused by the Senate 
Republicans.
  Now they apparently want to examine something else, which they will 
call her ``judicial philosophy'' or ``independence''. But it is not her 
philosophy, judgment, or her independence that matters to them. What 
they really want is assurance that she will rule the way they want so 
that they will get the end results they want in cases before the 
Supreme Court. Lack of such assurances was why they and the 
conservative right wing vetoed President Bush's nomination of Harriet 
Miers, the third woman to be nominated to the Supreme Court in our 
history and the only one not to be confirmed. They forced Ms. Miers to 
withdraw even while Democrats were preparing to proceed with her 
hearing. They do not want an independent judiciary. They demand 
Justices who guarantee the results they want, and that is their 
ideological litmus test.
  I reject the ideological litmus test that Senate Republicans would 
apply to Supreme Court nominees. Unlike those on the right who drove 
President Bush to withdraw the nomination of Harriet Miers, and those 
who opposed Justice Sotomayor, I do not require a Supreme Court nominee 
to swear fealty to the judicial approach and outcomes ordained by 
adhering to the narrow views of Justice Scalia and Justice Thomas. I 
expect judges and Justices to faithfully interpret the Constitution and 
apply the law, and also to look to the legislative intent of our laws 
and to consider the consequences of their decisions. Based on the 
review I have made of Solicitor General Kagan's career, I say frankly 
that I expect she and I will not always agree. I do not agree with 
every decision Justice Stevens has written, but I have such enormous 
respect for his judgment, this giant in the law.
  I do not always agree with Justice O'Connor, nor with Justice Souter. 
I have my disagreements with some of Justice Kennedy's decisions. But I 
have never regretted my vote in favor of their confirmation, because I 
respect their independence.
  I said only half facetiously when President Obama asked me: Why did 
some come out against Elena Kagan within minutes of her nomination, 
before they knew anything about her? I said: You have to understand, if 
you would have nominated Moses, the lawgiver, some of those same people 
would oppose.
  The former First Lady Laura Bush was asked recently about President 
Obama's nomination of Elena Kagan and she said: I think it's great. I'm 
really glad that there will be three [women serving on the Supreme 
Court] if she is confirmed.
  When Justice O'Connor was asked about the nomination she said that 
she was ``pleased'' that Solicitor General Kagan seemed ``very well 
qualified academically'' and should be confirmed and that ``it's fine, 
just fine'' that she is without prior judicial experience. Over the 
weekend Justice O'Connor elaborated saying: ``There is no reason you 
should have served on the Federal court bench'' before becoming a 
Justice. She had not. Justice Scalia went even farther on that score, 
saying recently that he was ``happy to see that this latest nominee is 
not a Federal judge--and not a judge at all''.
  The American people elected the first African-American President, and 
he is a leader who is committed to the Constitution and rule of law. 
With his initial selection to the Supreme Court, he named Justice Sonia 
Sotomayor, the first Hispanic to serve on the High Court. She was 
confirmed last year and has been a welcome addition to the Supreme 
Court. Now he has nominated only the fifth woman in the Nation's 
history to the Court, a nominee who can bring the number of women 
serving on the Court to an historic high-water mark of three from the 
time just a little over a year ago when it was just down to one.
  This month Justice Stevens will be leaving the Court after nearly 35 
years of dedicated public service. The Nation owes him a great debt. 
When I visited with him earlier this year, Justice Stevens shared with 
me the note from President Ford in which he recounted that he was 
prepared to allow history's judgment of his presidency to rest on his 
nomination of John Paul Stevens to the Supreme Court. I hope that 
President Obama can look at his Supreme Court appointments, long after 
his presidency has ended, and feel the same way about his nominees that 
President Ford felt about Justice Stevens.

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