[Congressional Record Volume 156, Number 95 (Wednesday, June 23, 2010)]
[Senate]
[Pages S5301-S5302]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   ELENA KAGAN AS POLITICAL OPERATIVE

  Mr. McCONNELL. Mr. President, on Monday, the Senate will begin the 
confirmation hearings on Supreme Court nominee Elena Kagan. And I think 
it is safe to say most American do not know all that much about her.
  But a fuller picture of this nominee is beginning to emerge.
  The recent release of documents relating to Ms. Kagan's work in the 
Clinton White House reveals a woman who was committed to advancing a 
political agenda, a woman who was less concerned about objectively 
analyzing the law than the ways in which the law could be used to 
advance a political goal.
  In other words, these memos and notes reveal a woman whose approach 
to the law was as a political advocate, the very opposite of what the 
American people expect in a judge.
  This is the kind of thinking behind the current Democratic effort to 
pass the so-called DISCLOSE Act, a bill designed to respond to the 
Supreme Court's decision in Citizens United that they think puts them 
at a political disadvantage in the fall. That is why the bill was 
written by the chairman of their campaign committee.
  And this is also the kind of thinking that seems to have motivated 
the Clinton White House to seek a similar legislative response the last 
time the Supreme Court issued a decision in this area that Democrats 
thought put them at a political disadvantage.
  I am referring here to the case of Colorado Republican Federal 
Campaign Committee v. FEC, a case in which the Supreme Court 
essentially said that the Federal Government could not limit political 
parties from spending money on campaign ads called ``independent 
expenditures'' that said things like, ``Vote against Smith,'' or ``Vote 
for Jones.''
  This was not an especially controversial decision, as evidenced by 
the fact that it was written by Justice Breyer, one of the Court's most 
prominent liberals. But the decision put Democrats at a political 
disadvantage. So the Clinton administration did the same thing then 
that the Obama administration is trying to do today. They considered 
proposals to lessen its impact and to benefit Democrats over 
Republicans. And Elena Kagan worked to advance that goal as part of 
President Clinton's campaign finance task force.
  Ms. Kagan's notes reveal that finding ways to help Democrats over 
Republicans was very much on her mind. According to one of her notes, 
she wrote:

       ``Free TV as balance to independent expenditures? Clearly, 
     on mind of Dems--need a way to balance this.''

  The ``balance'' Ms. Kagan is referring to was a way for Democrats to 
balance what they viewed as the Republicans' advantage in helping their 
candidates with independent expenditures. And ``free TV,'' well, that 
is a reference to Democrats wanting free television to help them out in 
their campaigns. Providing free TV would be a ``significant benefit,'' 
Ms. Kagan wrote. It was also something the Clinton administration could 
bring about, she suggested, by simply having the FCC issue a new 
regulation, or by adding such a provision to legislation the White 
House was helping to craft.
  But this was not the only way in which Ms. Kagan thought about 
stacking the deck to help Democrats over Republicans at the time. 
Another note reveals her approach to the issue of soft money, the money 
political parties used to spend outside of Federal elections. Ms. 
Kagan's notes show that she thought banning it would hurt Republicans 
and help Democrats. She even seemed to delight in the prospect of 
finding ways to disadvantage Republicans. Here is what she wrote in her 
notes:
  ``Soft [money] ban--affects Repubs, not Dems!''
  And if I had this quote up on a chart, you would see that she 
punctuated this sentence with an exclamation point.
  So let me repeat that quote one more time:
  ``Soft [money] ban--affects Repubs, not Dems''--punctuated with an 
exclamation point.
  We already knew that Ms. Kagan and her office argued to the Supreme 
Court at different points in the Citizens United case that the Federal 
Government had the power to ban political speech in videos, books and 
pamphlets if it did not like the speaker.
  Then we learned she went out of her way to prevent lawyers at the 
Justice Department from officially noting their serious legal concerns 
with campaign finance legislation in order to help the Clinton 
administration achieve its political goals.
  Now we learn that she thought about drafting such legislation in ways 
to help Democrats and hurt Republicans. And her advocacy and apparent 
glee at identifying some political harm to Republicans is, to my mind, 
another piece of her record that calls into question her ability to 
impartially apply the law to all who would come before her as a Justice 
on our Nation's highest Court.
  The more we learn about Ms. Kagan's work as a political adviser and 
political operative, the more questions arise about her ability to make 
the necessary transition from politics to neutral arbiter. As Ms. Kagan 
herself once noted, during her years in the Clinton

[[Page S5302]]

administration, she spent ``most'' of her time not serving ``as an 
attorney'' but as a policy adviser. And her notes and memoranda reveal 
that all too often her policy advice and actions were based, first and 
foremost, on what was good for Democrats.
  This kind of thinking might be okay for a political adviser. But 
there is a place for politics and for advocating for one's party, and 
that place is not on the Supreme Court. A political adviser may be 
expected to seek political advantage, but judges have a different task.
  We do not know how Elena Kagan will apply the law because she has no 
judicial record, little experience as a private practitioner, and no 
significant writings for the last several years. So the question before 
the Senate is whether, given Ms. Kagan's background as a political 
adviser and academic, we believe she could impartially apply the law to 
groups with which she does not agree and for which she and the Obama 
administration might not empathize. So far, I do not have that 
confidence.
  As the hearings progress, we will know better whether Ms. Kagan could 
``administer justice without respect to persons,'' as the judicial oath 
requires.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Ms. MURKOWSKI. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. MURKOWSKI. Mr. President, I understand we are in a period of 
morning business.
  The PRESIDING OFFICER. The Senator is correct.

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