[Congressional Record Volume 156, Number 93 (Monday, June 21, 2010)]
[Senate]
[Pages S5182-S5184]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       NOMINATION OF ELENA KAGAN

  Mr. SESSIONS. Mr. President, the Judiciary Committee is now reviewing 
the record of Elena Kagan, President Obama's nominee to the Supreme 
Court. The truth is, her legal record is thin. She has never been a 
judge and has very limited experience even in the practice of law. She 
has never tried a case, never cross-examined a witness or made a 
closing argument in a trial.
  A lack of judicial experience is not a total disqualifier for the job 
of Supreme Court Justice, but it is true and fair to say this nominee 
has less real legal experience than any nominee confirmed to the Court 
in the last 50 years. That fact concerns me and many Americans. Ms. 
Kagan's lack of experience puts even greater emphasis on the central 
question in the nomination process: If confirmed, what kind of judge 
will Elena Kagan be? Will she take the traditional view that judges are 
impartial umpires who decide cases based on the rule of law under the 
Constitution? Or is she from the activist school, which teaches that 
judges may take sides and reinterpret the meaning of our laws to 
advance certain political agendas the judge may find acceptable or 
desirable or better? Are judges empowered to do that in the American 
system?
  The American people have a right to know. This is no time for a 
stealth candidacy to the Court. We know one thing. We know her 
political views are leftist and progressive. That is clear from her 
record. She has a rather extensive political record. But with no 
judicial record and little legal record, clues to Ms. Kagan's judicial 
philosophy can be found perhaps by looking at people she admires, her 
mentors, judges she thinks represent the best way of conducting their 
office.
  The three judges Ms. Kagan most often mentions are Judge Abner Mikva, 
Justice Thurgood Marshall, and former Israeli Judge Aharon Barak. 
Together I think it is fair to say these three judges represent the 
vanguard of a judicial activist movement that has certain intellectual 
roots and is quite afoot in our law schools and some of our legal 
commentators.
  Each of these judges affirms the concept that a judge's own views, 
their personal views, may--sometimes even should--guide their 
interpretations of the law. In effect, this philosophy argues that the 
outcome of the case is more important than the legal process that 
guides the decisions, more important than fidelity to the Constitution. 
These Kagan heroes believe judges should have the power to make law. 
This results-oriented philosophy raises questions about whether Ms. 
Kagan may see judicial power as a way to advance her philosophy. It is 
a liberal, big government agenda for America. She has been active in 
that philosophy throughout her lifetime.
  Let's look at some of her heroes in more detail. Judge Mikva is 
someone with whom she has been close. He was appointed to the bench by 
President Carter a number of years ago to the DC Circuit Court of 
Appeals.
  She clerked for Judge Mikva in 1986 and 1987 and later worked for him 
in the Clinton White House. After he had resigned from the bench and 
came into the Clinton White House, she was hired to work with him in 
that office. On the day she accepted President Obama's nomination, Ms. 
Kagan noted that Judge Mikva ``represented the best in public service'' 
and that working for him was part of the ``great good fortune'' that 
had marked her career. He served five terms as a Congressman from 
Chicago, where he earned the reputation as ``the darling of American 
liberals.'' He has advocated for strict gun control, reportedly 
referring to the National Rifle Association as a ``street-crime 
lobby.'' He was a fierce opponent of the war in Vietnam and has said he 
supports the results in Roe v. Wade. The results.
  Regarding how to interpret the Constitution or statute, Mikva has 
said that for ``most law, there is no original intent.'' The general 
view is that one should find out what the law was intended to mean when 
it was passed.
  Some people dismiss that and are cynical about that, think that is an 
impossible goal. That is what Judge Mikva apparently believes. He has 
defined judicial activism as ``the decisional process by which judges 
fill in the gaps'' in the law and the Constitution. That is similar to 
President Obama's theory--which I think is flawed--that for ``the five 
percent of the cases that are truly difficult,'' the judge's decision 
depends on ``the depth and breadth of one's empathy.''
  So the critical ingredient is supplied by what is in a judge's heart. 
Whatever a heart is, it is not the mind and it is not, therefore, 
objective judgment. It is more akin to something else. I have said this 
kind of thinking is more akin to politics than law. It is certainly not 
law, not in the American tradition of law.
  Ms. Kagan also clerked for Justice Thurgood Marshall, whom she refers 
to as her hero. Indeed, Marshall is a historic figure. He was 
courageous at a time when courage was definitely needed and an 
effective leader in the civil rights movement. He was a great attorney 
and a fierce advocate for his clients and his ideals. He could be a 
hero of anyone as an American advocate and a person who played a 
fundamental role in the breakdown of segregation in America. But he 
also became one of the most active judges on the Court in our Nation's 
history.
  In describing his own judicial philosophy, Marshall said that ``[y]ou 
do what you think is right and let the law catch up.'' He dissented in 
all death penalty cases because he and Justice Brennan declared the 
prohibition of ``cruel and unusual'' punishment that is in the 
Constitution barred any death penalty.
  That might sound plausible in one sense. But in truth, this can never 
be a fair interpretation of the cruel and unusual clause in the 
Constitution, since there are multiple references in the Constitution 
to the death penalty and how it should be carried out.

  How could you possibly construe the document as a whole to say that 
``cruel and unusual'' prevents the death penalty? Well, they did not 
like the death penalty; Marshall and Brennan did not. They thought it 
was wrong. They thought the world had developed and moved forward to a 
``higher land'' and they were just going to declare it and the law 
would follow.
  Well, according to Kagan, in Justice Marshall's view, 
``constitutional interpretation demanded . . . that the courts show a 
special solicitude for the despised and disadvantaged.'' Certainly the 
courts should be sure that the despised or disadvantaged have a fair 
day

[[Page S5183]]

in court. But the way this plays out, I believe, as suggested in the 
full remarks, is that it untethers the judge from the rule of law. I 
think it contradicts, in fact, the sworn oath of a judge, which reads 
``I do solemnly swear that I will administer justice without respect to 
persons, and do equal right to the poor and to the rich, and that I 
will faithfully and impartially discharge and perform all the duties 
incumbent upon me under the Constitution and laws of the United States, 
so help me God.'' Even so, Ms. Kagan said that showing ``a special 
solicitude'' for certain groups was Marshall's ``vision of the Court 
and Constitution. And . . . it [was] a thing of glory.'' Well, it 
certainly represents a great vision for an advocate, but I do think we 
need to be sure that the judge who puts on the robe is going to follow 
their oath to be impartial and to decide matters based on the law and 
facts.
  But, interestingly, the judge Ms. Kagan praises the most happens to 
be perhaps the most activist judge on Earth: Aharon Barak, the former 
president--or chief justice--of the Israel Supreme Court. The respected 
Federal judge Richard Posner flatly described Barak as a ``judicial 
activist.'' Elena Kagan described him as her ``judicial hero.''
  To judicial activists around the world, Aharon Barak is an icon. 
After inviting him to Harvard, Ms. Kagan called him ``a great, great 
judge'' who ``presided over the development of one of the most 
principled legal systems in the world.'' Her comments are troubling to 
anyone who believes in limited government and democracy and a limited 
role for judges. Under Barak, the Israeli court assumed extraordinary 
governmental power over the people of Israel. The basic democratic 
rights we take for granted in our country were ignored in his actions. 
The unelected court in Israel assumed the authority to set aside 
legislation and executive actions when there were disagreements about 
policy--not violations of the constitution, but disagreements about 
policy. It would alter the meaning of enacted laws and override even 
national defense measures.
  Judge Posner wrote that Barak inhabits ``a completely different--and, 
to an American, a weirdly different--juristic universe.'' He goes on to 
say: ``What Barak created . . . was a degree of judicial power 
undreamed of even by our most aggressive Supreme Court justices.'' 
Judge Posner compared Barak's actions to ``Napoleon's taking [of] the 
imperial crown out of the Pope's hands and crowning himself.''
  Well, is that what we want in the Court? Do we want someone who sees 
this judge as one of the most admirable judges in the world? Do we want 
to allow a disregard for the limits of governmental power to further 
infect our own government? Is that disrespect for the views of ordinary 
men and women something to which we should aspire? In other words, do 
unelected, lifetime judges, who are unaccountable to the people--are 
they entitled to this kind of power? Is this progressive idea that 
``experts'' know best consistent with the American view of individual 
responsibility and popular sovereignty? I think not.
  What is Judge Barak's judicial philosophy, as he expresses it? He has 
written that a judge's role ``is not restricted to adjudicating 
disputes'' between parties, as is required by the cases and 
controversies clause of our Constitution. Rather, he says:

       The judge may give a statute new meaning. . . .

  ``The judge may give a statute new meaning''--

     a dynamic meaning, that seeks to bridge the gap between law 
     and life's changing reality without changing the statute 
     itself. The statute remains as it was, but its meaning 
     changes, because the court has given it a new meaning that 
     suits new social needs.

  Well, I would say that Justice Barak let the cat out of the bag. In 
America, activist judges firmly deny this is what they are doing, but 
in reality, often that is exactly what they are doing--just taking 
plain statutes and giving the words new meaning and making them say 
what they would like for them to have said had they written them in 
that given period of time.
  I believe that to the American people, those words, are offensive and 
strike at the heart of our democracy. I do not know how you would 
describe that philosophy, but I do not think it is law, not the law in 
the great American English tradition of law, a tradition that has 
attracted people all over the world because they believe they have an 
opportunity to achieve justice here. Again, I think it is more akin to 
politics, which should not be a judge's role. There is no place for 
politics in the courtroom.
  Perhaps we should not be surprised that Ms. Kagan--President Obama's 
nominee--so greatly admires someone who endorses a results-oriented 
approach, however, because President Obama's Press Secretary, Robert 
Gibbs, just recently described the President himself as ``results-
oriented'' when it comes to law and judging. Amazingly, Gibbs said this 
about President Obama's view of judging:

       The president is a very pragmatic person who is far less 
     wedded to the process and the mechanics of how you get 
     something done and more wedded to what will the results be.

  He is results-oriented, Gibbs said. What do we mean by ``results-
oriented''? Results-oriented judging can only mean that a judge enters 
the courtroom with a preconceived idea of what the results should be, 
even before he has reviewed the law or heard the facts of the case. And 
what kinds of conclusions do they have in mind before the trial starts? 
Well, it is based on the judge's political views or personal feelings 
about parties or issues in the case. What else could they be? He or she 
might suggest that those views are somehow provided to them as knowing 
better than anyone else and that they, therefore, have a duty to impose 
those ``wise'' ideas on the people and the parties in the case. But I 
think most of us are not so willing to acknowledge judges are any wiser 
than anyone else. And what if the Constitution does not support such a 
result? The judge simply would then declare the law to mean something 
other than it says.
  So that is the philosophy, I contend, that has been endorsed, 
frankly, by the President. I fundamentally disagree with his 
philosophy, which is also a philosophy shared by the heroes of Ms. 
Kagan.
  This nominee has a very slim legal record, and it is difficult to 
evaluate that. She does have a very clear liberal political record. 
What legal record she has seems to be outside the concept that a judge 
must serve under the law and under the Constitution.
  So it is fair to ask, Does she agree with her heroes? Does she agree 
with her President? Does she see her lifetime appointment to the Court 
as an opportunity to promote ideas she desires and then let the law 
catch up? To that question, we cannot simply accept a confirmation 
testimony: I will follow the Constitution. Too often, nominees have 
testified before the committee like Chief Justice John Roberts and gone 
on to rule more like Aharon Barak. Lipservice to the rule of law is not 
enough. Activists who have a postmodern view of the law think the 
Constitution really has no set meaning, there is no way to honestly 
interpret what it means. So it is easy for them to promise to follow 
the law because the law, to them, is something that can be changed. It 
is malleable. It is inexact. It is not finite. They can make it say 
what they want it to say.
  So the question is, Is that the approach Ms. Kagan will take at the 
hearing? And is that her basic philosophy of judging? She has written 
that judges should be forthcoming at the confirmation process, and I 
think we will need to talk about those issues. It is an important 
confirmation. It is not a coronation. This is a lifetime appointment. 
This young nominee could easily serve for more than three decades. 
Indeed, the man she is replacing is--if she lives to his age and serves 
to his age, she would serve 40 years.
  So I think she is entitled to fair and respectful treatment. She is 
entitled to have an opportunity to discuss and respond to the questions 
I have raised and others will raise. That is absolutely true, and we 
cannot use unfairness to besmirch a nominee. But we do need to know: Is 
this her philosophy of law? What kind of judge will she be? Isn't it 
true that a person's heroes tell a great deal about who they really 
are? Few would dispute that these heroes of hers represent three of the 
most well-known activist judges in the world. So I think the questions 
are important.
  As I have said before, I will oppose--and every Senator should 
oppose--any

[[Page S5184]]

nominee who does not understand and fully accept that their duty is to 
serve, as the oath says, ``under the Constitution and laws of the 
United States.'' That is why I think it is only fair to state these 
concerns before the hearing. I hope my colleagues will be following it. 
I know our committee members are working hard. It is being a bit 
rushed, but we are doing our best to be ready next Monday to commence 
the hearing. I think it will be a good time. I look forward to it, and 
I hope people who see it will feel as if it was fairly conducted and 
beneficial not only to Senators, who must vote, but to the American 
public at large.
  I thank the Presiding Officer and yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent to speak in 
morning business for up to 20 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________