[Congressional Record Volume 156, Number 92 (Friday, June 18, 2010)]
[Senate]
[Pages S5149-S5150]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            KAGAN NOMINATION

  Mr. McCONNELL. Mr. President, last month, the President nominated his 
friend and member of his administration, Solicitor General Elena Kagan, 
to a lifetime position on the Supreme Court. Ms. Kagan has never been a 
judge and only practiced law for 2 years as a junior associate before 
her current position as Solicitor General. She has largely been an 
academic, administrator, and policy advocate and advisor.
  So we have not had a lot of information about her background.
  But recent documents from her time as a policy advocate in the 
Clinton administration have shed more light on her views. And, in my 
view, they help answer the question some have asked as to whether she 
would be able to transition into a very different kind of role; namely, 
that of an impartial jurist Americans expect to sit above the political 
fray.
  As a judge on our highest court, Ms. Kagan would no longer be a 
member of President Obama's team. Rather, her job would be to apply the 
law even-handedly to persons and groups with whom she might not 
necessarily empathize. And in that regard, it is instructive to see how 
she's viewed the law and applied it when it comes to persons and groups 
with which she may not agree.
  I previously discussed Ms. Kagan's role in the Citizens United case. 
Here was a case in which the government said it could block a small 
nonprofit corporation from showing a movie that it made about then-
Senator Hillary Clinton because it viewed the film as the kind of 
political speech that was prohibited by Federal campaign finance laws.
  This was not only the first case Ms. Kagan argued as a member of the 
Obama administration; it appears to have been the first case she has 
ever argued in any court. And in it, she and her office took the 
position, at different points in the case, that the Federal Government 
had the power to ban videos, books and pamphlets if it didn't like the 
speech or the speaker, a shocking position for the solicitor general of 
a nation that has always prided itself on a robust exchange of ideas 
under the first amendment.
  The justices on the Supreme Court, conservative and liberal alike, 
also seem to have been taken aback by this position. As were legal 
commentators of all political stripes; but now, in looking at some of 
the documents from her time as a political advisor in the Clinton 
administration, perhaps her views before the Supreme Court in Citizens 
United are not that surprising after all.
  As a part of President Clinton's team, Ms. Kagan co-wrote a memo in 
which she said it was unfortunate that the Constitution stands in the 
way of many government restrictions on spending on political speech. 
She also wrote that many of the Supreme Court's precedents that protect 
political speech in this area were, to quote her memo, ``mistaken in 
many cases.''
  We have also learned from the documents produced by the Clinton 
Library last week that Ms. Kagan was a member of the campaign finance 
working group at the Clinton White House. These documents appear to 
show that in this area, at least, Ms. Kagan placed her political 
desires over an evenhanded reading of the law and of the rights that 
the Constitution protects.
  What is more, these newly released documents show that Ms. Kagan went 
out of her way to prevent the professional lawyers at the Justice 
Department from officially noting their concerns that the legislation 
being considered in Congress could infringe on Americans' first 
amendment rights.
  In the mid-1990s, for example, the Office of Legal Counsel was 
concerned with the constitutionality of campaign finance legislation 
making its way through Congress. As a July 17, 1996, memo by Ms. Kagan 
put it: The OLC believed that all of the campaign finance bills under 
consideration by the House at that time ``present[ed] serious 
constitutional issues.''
  Now, Ms. Kagan did not say these lawyers were wrong. In fact, she 
noted that their concerns were to be expected in a case like this. But 
allowing them to express their legal analysis would have been at odds 
with the Clinton administration's political strategy, a strategy she 
helped develop.
  She was determined, as one memo put it, to ``try to head off DOJ . . 
. letters'' that noted constitutional problems. So she called a 
political appointee at the Justice Department and told him that 
Clinton's Office of Management and Budget ``might well disapprove'' any 
such opinion letter from the Justice Department.
  The phone call evidently worked. The documents we have now seen show 
that the political appointee with whom she spoke called back and told 
her the ``OLC did not have adequate time to prepare comments on the 
campaign finance legislation and, given the possibility that such 
comments might not go through, would not attempt to do so.'' What a 
coincidence.

[[Page S5150]]

  Whether one works in the judicial, legislative, or executive branches 
of government, you take an oath to support and defend the Constitution 
of the United States. In this case, Ms. Kagan recognized that the 
professional lawyers at the Justice Department had valid legal concerns 
that these bills might violate Americans' free speech rights. But she 
disregarded these valid concerns, and even helped prevent them from 
being aired, in order to help advance a political agenda.
  Now, I understand that Ms. Kagan was part of President Clinton's 
team, just like she is now part of President Obama's team. Both 
Presidents were no doubt pleased with her political and policy advice. 
And we know President Obama is very pleased with the job she did in 
Citizens United. But if she were confirmed to the Supreme Court, she 
can not be on anyone's team.
  Ms. Kagan has said that judging is a ``craft,'' and that the Senate 
should always insist that a nominee's background show that they can 
``master'' that craft. I agree with Ms. Kagan that judging is a craft. 
But for most of her adult life, she has practiced a much different 
craft, the craft of political advocacy. We must be convinced that 
someone who has spent the better part of her career as a political 
adviser, policy advocate, and academic, rather than as a legal 
practitioner or a judge, can put aside her personal and political 
beliefs, and impartially apply the law, rather than be a rubberstamp 
for the Obama or any other administration. The Clinton library 
documents make it harder, not easier, to believe that Ms. Kagan could 
make that necessary transition.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Merkley). Without objection, it is so 
ordered.

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