[Congressional Record Volume 156, Number 96 (Thursday, June 24, 2010)]
[Senate]
[Pages S5387-S5388]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                       NOMINATION OF ELENA KAGAN

  Mr. HATCH. Madam President, next week the Judiciary Committee will 
hold its hearing on the nomination of Elena Kagan to replace Supreme 
Court Justice John Paul Stevens. The Senate's role of advice and 
consent, especially for Supreme Court Justices, is one of our most 
important constitutional duties. I wish to share a few thoughts about 
how I will approach this task.
  America's Founders designed the judiciary to be, as Alexander 
Hamilton described it, the weakest and least dangerous branch of 
government. Things have not worked out as planned. The judiciary today 
is, instead, the most powerful, and potentially the most dangerous, 
branch of our government. Rather than being accountable to the people 
by being subject to the people's Constitution, activist judges often 
make the people accountable to them by seeking to control the people's 
Constitution. My objective in this confirmation process is to find out 
which kind of Justice Ms. Kagan would be if confirmed to the Supreme 
Court.
  Judicial qualifications fall into two categories: legal experience 
and judicial philosophy. Legal experience is a summary of what a 
nominee has done in the past and can be described in a resume or on a 
questionnaire. Judicial philosophy describes how a nominee will 
approach the task of judging in the future. It is harder to determine, 
but I believe it is much more important.
  Let me first look at Ms. Kagan's legal experience. I have never 
believed that judicial experience is necessary for Supreme Court 
service or, to put it another way, I have never believed it to be a 
disqualification if you do not have judicial experience. In fact, 39 
Supreme Court Justices--about one-third--had no previous judicial 
experience. What they did have, however, was extensive experience in 
the actual practice of law, an average of more than 20 years. These are 
Justices such as George Sutherland, one of my predecessors as Senator 
from Utah, who practiced for 23 years, or Robert Jackson, who practiced 
for 21 years and served as both Solicitor General and Attorney General. 
In other words, Supreme Court Justices have had experience behind the 
bench as a judge, before the bench as a lawyer, or both.
  Ms. Kagan has neither. She spent only 2 years as a new associate in a 
large law firm. She never litigated a case or argued before any 
appellate court before becoming Solicitor General last year.
   And her work in the Clinton administration was focused on policy and 
legistation. As the Washington Post described it recently, Ms. Kagan 
would bring to the Court experience ``in the political circus that 
often defines Washington.'' Some people may see little difference 
between the legal and the political, but I do and am concerned about 
blurring the lines even further.
  Last week, one of my Democratic colleagues with whom I serve on the 
Judiciary Committee talked about Ms. Kagan's qualifications and claimed 
that some Senators question her fitness for the Supreme Court solely 
because she has never been a judge. No one has made that argument. This 
Democratic colleague identified Justices Byron White, William 
Rehnquist, Louis Brandeis, and Lewis Powell as among those with no 
prior judicial experience. These Justices had practiced, respectively, 
for 14, 16, 37, and 39 years and Justice Powell had also been president 
of the American Bar Association. There really is no comparison.
  So on this first element of legal experience, we have to be honest 
about what the record shows. Unlike other Supreme Court nominees, Ms. 
Kagan has no judicial experience and virtually no legal practice 
experience. That leaves her academic and political experience. The 
Democratic Senator I mentioned identified as among Ms. Kagan's 
strongest qualifications for the Supreme Court her experience crafting 
policy and her ability to build consensus. Judges, however, are not 
supposed to be crafting policy, and consensus-building only begs the 
question of what a consensus is being built to support.
  This relatively light record of legal experience only places more 
importance on judicial philosophy, the other qualification for judicial 
service. Frankly, finding reliable clues about judicial philosophy is 
often harder in an academic and political record such as Ms. Kagan's 
than in a judicial record. This is especially true when, like Ms. 
Kagan, a nominee has rarely written directly about the topic. This does 
not mean that reliable clues do not exist, just that they are harder to 
find. I have to take Ms. Kagan's record as it is because I have to base 
my decision on evidence, not blind faith.
  Judicial philosophy refers to the process of interpreting and 
applying the law to decide cases. That is what judges do, but they can 
do it in radically different ways. Notice I said this is about the 
process of deciding cases, not the results of those cases. Many people, 
including some of my Senate colleagues and many in the media, focus 
only on the results that judges reach, apparently believing that the 
political ends justify the judicial means.
  That is the wrong standard for evaluating either judicial decisions 
or judicial nominees. Politics can focus on the results, but the law 
must focus on the process of reaching those results. Rather than the 
desirable ends justifying the means, the proper means must legitimate 
the ends. It makes no difference which side wins, which political 
interest comes out on top, or whether the result can be labeled liberal 
or conservative. If the judge correctly interprets and applies the law 
in a particular case, then the result is correct.
  So I wish to pin down, as best I can, what kind of Justice Ms. Kagan 
would be. Will the Constitution control her or will she try to control 
the Constitution? Will she care more about the judicial process or the 
political results? As I said, those clues come primarily from her 
record, secondarily from next week's hearing. So let me briefly focus 
on a few areas of Ms. Kagan's record and mention some questions that 
need to be answered and some concerns that need to be addressed.
  First, while in graduate school, Ms. Kagan wrote that the Supreme 
Court may overturn previous decisions ``on the ground that new times 
and circumstances demand a different interpretation of the 
Constitution.'' Not a different application, mind you, but a different 
interpretation. She wrote quite candidly that it is ``not necessarily 
wrong or invalid'' for judges to ``mold and steer the law in order to 
promote certain ethical values and achieve certain social ends.''
  In a 1995 law journal article, she agreed that in most cases that 
come before the Supreme Court, the judge's own experience and values 
become the most important element in the decision. In her words, ``many 
of the votes a Supreme Court Justice casts have little to do with 
technical legal ability and much to do with conceptions of value.'' 
That sounds a lot like President Obama, who said as a Senator that 
judges decide cases based on their own deepest values, core concerns, 
the depth and breadth of their empathy, and what is in their heart. If 
that is too results oriented, Ms. Kagan wrote, so be it.
  While Ms. Kagan has not herself been a judge, those judges she has 
singled out for particular praise have this same activist judicial 
philosophy. In a tribute she wrote for her mentor Justice Thurgood 
Marshall, for example, she described his judicial philosophy as driven 
by the belief that the role of the courts and the very purpose of 
constitutional interpretation is to ``safeguard the interests of people 
who had no other champion. The Court existed primarily to fulfill this 
mission. . . . And however much some recent Justices have sniped at 
that vision, it remains a thing of glory.''
  In 2006, when she was dean of Harvard Law School, Ms. Kagan praised 
as her judicial hero Aharon Barak, who served on the Supreme Court of 
Israel for nearly 30 years. She called him ``the judge or justice in my 
lifetime whom I think best represents and has best advanced the values 
of democracy and human rights, of the rule of law, and of justice.'' 
That is not simply high praise, but the highest praise possible, for 
she said that Justice Barak was literally the very best judge anywhere 
during her entire lifetime in representing and advancing the rule of 
law.
  Who is this judge who, for Ms. Kagan at least, is literally the best 
representation of the rule of law? Judge Richard Posner has described 
Justice Barak as ``one of the most prominent of the

[[Page S5388]]

aggressively interventionist foreign judges'' who ``without a secure 
constitutional basis. . .created a degree of judicial power undreamt of 
by our most aggressive Supreme Court justices.'' Judge Posner concluded 
that to Justice Barak, ``the judiciary is a law unto itself.''
  These and other examples, over a period of more than two decades, fit 
consistently together. They indicate that for most of her career, Ms. 
Kagan has endorsed, and has praised others who endorse, an activist 
judicial philosophy. She appears to have accepted that judges may base 
their decisions on their own sense of fairness or justice, their own 
values of what is good and right, their own vision of the way society 
ought to be. This activist philosophy, she has said, is a thing of 
glory and best represents the rule of law. That is what her record 
shows, and we will have to see what next week's hearing uncovers on 
this important subject.
  There are also some specific subjects or controversies that must be 
explored. These might have been less important if Ms. Kagan did not 
have the record I just described. If she had not endorsed and praised 
judges making decisions based on their personal values and objectives, 
then evidence of her own personal values or objectives would obviously 
be less relevant. But as Ms. Kagan said in a 2004 interview, since a 
judge's personal attitudes and views make a difference in how they 
reach their decisions, ``the Senate is right to take an interest in who 
these people are and what they believe.''

  I wish to note two of the areas in which it appears Ms. Kagan's 
personal or political views have driven her legal views. The first is 
abortion. When she clerked for Justice Marshall, she recommended 
against the Court reviewing the decision in a case titled Lanzaro v. 
Monmouth County Correctional Institutional Inmates. The U.S. Court of 
Appeals for the Third Circuit held that prison inmates have a right to 
elective abortions and that by refusing to pay for them, the county 
violated the Constitution's eighth amendment ban on cruel and unusual 
punishment. Ms. Kagan properly rejected this bizarre holding, even 
calling parts of the analysis ludicrous. Yet she urged against the 
Court reviewing this decision because, as she put it, ``this case is 
likely to become the vehicle that this court uses to create some very 
bad law on abortion and/or prisoners' rights.'' Broader policy 
objectives seemed more important than even reviewing a ludicrous 
constitutional decision.
  The record also shows that later Ms. Kagan was a key player behind 
the Clinton administration's extreme abortion policy. In May 1997, 
after President Clinton had vetoed the Partial Birth Abortion Ban Act, 
Ms. Kagan wrote a memo recommending that he support the substitutes for 
the ban being offered by Senators Daschle and Feinstein. She 
recommended this solely for political reasons, because it might attract 
some votes from Senators who would otherwise vote to override his veto. 
Had that strategy worked, of course, the substitutes would not have 
passed and partial birth abortion would have remained legal. The 
barbaric practice of partial-birth abortion would have remained legal.
  Significantly, however, Ms. Kagan noted that the Office of Legal 
Counsel had concluded that these substitute amendments were 
unconstitutional under the Supreme Court's Roe v. Wade decision. There 
is no indication that she disagreed with this conclusion. The point is 
that Ms. Kagan urged a purely political position on abortion that was 
at odds with what the Clinton administration then believed the 
Constitution required. Once again, it looks as though politics trumped 
the law.
  Another controversy involved the military's ability to recruit at 
Harvard Law School during Ms. Kagan's tenure as dean. Ms. Kagan made 
her personal views and values as plain as anyone could make them, 
saying repeatedly that she abhorred the military's policy with regard 
to homosexuals and calling it a profound wrong and a ``moral injustice 
of the first order.'' Federal law, known as the Solomon amendment, 
denies Federal funds to schools with policies or practices that have 
the effect of preventing military recruiters the same access to campus 
or to students that other employers have. A group called the Forum for 
Academic and Institutional Rights, or FAIR, challenged the law in 
court.
  Ms. Kagan first joined a legal brief filed in support of FAIR's 
challenge with the U.S. Court of Appeals for the Third Circuit. Within 
24 hours of the court enjoining enforcement of the Solomon amendment, 
Ms. Kagan again banned military recruiters from access to Harvard's 
Office of Career Services. She was not required to do this because the 
Third Circuit does not include Massachusetts. She kept the ban in place 
even after the Third Circuit stayed its own injunction while it was 
being appealed to the Supreme Court. In other words, Ms. Kagan denied 
military recruiters access even though the law still required access. 
She could have opposed the military's policy in various ways, but chose 
to do so in a way that undermined military recruitment during wartime. 
And the recruitment ban was lifted only after the president of Harvard 
University stepped in and overrode Ms. Kagan's decision.
  Ms. Kagan then joined a group of law professors filing a brief with 
the Supreme Court. To its credit, FAIR actually agreed with the 
government about the proper reading of the Solomon amendment. But Ms. 
Kagan and her fellow professors urged the courts to read the statute in 
an artificial and unnatural way that actually contradicted both the 
plain terms of the statute and the position of the very party on whose 
behalf she had filed her brief. The statute required that the military 
be treated the same as employers who are granted access to campus. Ms. 
Kagan argued instead that the military be treated the same as employers 
who are denied access to campus. Not surprisingly, the Supreme Court 
unanimously rejected Ms. Kagan's position, saying that her group of law 
professors simply misinterpreted the statute in a way that would 
literally negate it and make it ``a largely meaningless exercise.'' She 
did everything she could, including defying Federal law and making 
legal arguments that even Justice Stevens could not accept, to pursue 
her political objective.
  In closing, I wanted to come to the floor today to describe for my 
colleagues the approach I am taking to evaluate Ms. Kagan's nomination 
to the Supreme Court. The most important qualification for the position 
is her judicial philosophy, the kind of Justice she will be. The 
evidence for her judicial philosophy comes primarily from her record, 
and I have touched on some areas of concern that must be examined more 
closely.
  This is a grave decision. It is about more than simply one person. 
The liberty we enjoy in America requires that the people govern 
themselves and that, in turn, depends upon the kind of Justices who sit 
on the highest court in the land. George Washington said this in his 
farewell address: ``The basis of our political systems is the right of 
the people to make and alter their constitutions of government. But the 
Constitution which at any time exists, till changed by an explicit and 
authentic act of the whole people, is sacredly obligatory upon all.'' 
Judges who bend the Constitution to their own values and who use the 
Constitution to pursue their own vision for society take this right 
away from the people and undermine liberty itself.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Texas is 
recognized.
  Mr. CORNYN. I ask unanimous consent to speak for up to 15 minutes as 
in morning business.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

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