[Congressional Record Volume 156, Number 98 (Monday, June 28, 2010)]
[Senate]
[Pages S5474-S5475]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       NOMINATION OF ELENA KAGAN

  Mr. McCONNELL. Madam President, the Judiciary Committee just wrapped 
up its hearings on the first day of the nomination of Elena Kagan to be 
an Associate Justice of the Supreme Court. These hearings will provide 
Senators on both sides of the aisle an opportunity to examine Ms. 
Kagan's record, legal experience, and background in light of the 
awesome responsibility that comes with a lifetime appointment on our 
Nation's highest Court. These hearings also provide an opportunity for 
the American people to focus their attention on a woman whom President 
Obama would like to see deciding cases on many of the most important 
and consequential issues we face as a people, long after the 
President's time in office is through.
  In the near term, she would be ruling on the actions and policies of 
an administration of which she is now a member. So it is well worth 
asking why the President chose Ms. Kagan in the first place. We know 
the President and Ms. Kagan are former colleagues, and we know from the 
President himself that they are friends. We know he views her as an 
important member of his team and that he was especially pleased with 
her handling of the Citizens United case. The President is no doubt 
confident that Ms. Kagan shares his view that judges should be judged 
primarily on their ability to empathize with some over others; in other 
words, that she embraces the empathy standard he has talked about time 
and time again. But as I have said before, while empathy may be a very 
good quality in general, in a court of law it is only

[[Page S5475]]

good if you are lucky enough to be the guy the judge empathizes with. 
In those cases, it is the judge, not the law, who determines your fate.
  In a nation such as ours, conceived from its very beginning as a 
nation not of men but of laws, this is a very dangerous road to go 
down. In the case of President Obama's previous nominee to the Supreme 
Court, Senators had many years of court cases to study in determining 
whether Sonia Sotomayor could be expected to treat everyone who came 
before her equally, just as Americans would expect in a judge and just 
as the judicial oath requires. In Elena Kagan's case, however, no such 
record exists. She has no experience as a judge, nor does she have much 
of a record as a legal practitioner. This is one of the reasons some 
have raised Ms. Kagan's experience as an issue.
  It stands to reason that in order to know what kind of judge John 
Roberts or Sam Alito or Sonia Sotomayor would be, it was useful for 
Senators from both parties to look at the kind of judge these nominees 
had been. Since Ms. Kagan has not had the judicial or private practice 
experience common to most modern-day nominees, it is all the more 
important that we look more closely at the kind of experience she has 
had. A review of that experience reveals a woman who has spent much of 
her adult life not steeped in the practice of law but in the art of 
politics. To be more specific, when we look at Elena Kagan's resume, 
what we find is a woman who spent much of her adult life working to 
advance the goals of the Democratic Party.
  As a young woman in college, she spent one summer working 14 hours a 
day for a liberal Democratic candidate for the Senate, and when her 
candidate lost, Ms. Kagan wrote that she believed the ``world had gone 
mad, that liberalism was dead.'' If all we had were the comments of an 
impassioned young student, they would not be worth all that much. Few 
of us would want everything we wrote as a college student put up on an 
overhead projector.
  Yet the trajectory of Ms. Kagan's career, the testimony of those who 
know her work well, and the recently released records of her time as a 
political adviser in the Clinton White House, suggest otherwise. Taken 
together, they suggest someone, as one news story put it, who long 
after college and even at the highest peaks of political influence was 
``driven and opinionated, with a flare for political tactics. . . .''
  What else do we find in Ms. Kagan's resume? Well, she volunteered for 
the Dukakis Presidential campaign, working as an opposition researcher 
to defend the then-Governor of Massachusetts from attacks, and to look 
for ways to attack the Republican opposition. As an aide to President 
Clinton, Ms. Kagan did not serve mostly as an attorney, as she put it, 
but as a policy advocate, frequently looking for ways to advantage 
Democrats over Republicans.
  If you believe the role of a judge is to be an impartial arbiter, 
these things cannot be ignored. Indeed, Members of both parties should 
appreciate the importance of confirming judges who are more interested 
in what the law says than in how the law can be used to advantage any 
one individual, party, or group. It is to no one's advantage if judges 
cannot be expected to rise above politics. As the chairman of the 
Judiciary Committee once put it:

       No one should vote for somebody that's going to be a 
     political apparatchik for either the Democratic Party or the 
     Republican Party.

  If there is one thing we can all agree on, it is that politics should 
end at the courtroom door.
  So this is one of the key questions Senators will be looking to 
answer as these hearings proceed: Is someone who has done the kind of 
political work Ms. Kagan has done in her career more or less likely to 
restrain her political views if she were confirmed to a lifetime 
position on the country's highest Court?
  Ms. Kagan has never made a secret of her professional aspirations. 
She has cultivated all the right friendships along the way, which is 
all well and good. No one ever rose to the heights of their profession 
by ignoring or upsetting the people who could get them there. But the 
question before us is whether Ms. Kagan's political views would be more 
or less constrained by the Constitution she swears to uphold once she 
reaches her goal.
  Some of Ms. Kagan's supporters wish us to focus on her personality. 
They wish to point out she has a knack for making friends and for 
getting along well with different kinds of people in academia and among 
the political class. Once again, these are all fine qualities. No one 
has any doubt that Ms. Kagan is bright and personable and easy to get 
along with. But the Supreme Court is not a dinner club. If getting 
along in polite society were enough to put somebody on the Supreme 
Court, then we would not need confirmation hearings at all.
  The goal here is not to determine whether we think someone will get 
along well with the other eight Justices; it is whether someone can be 
expected to be a neutral and independent arbiter of the law rather than 
a rubberstamp for any administration.
  These are just some of the questions Senators will be asking and 
which Ms. Kagan will be expected to answer. No one should have any 
doubt that Republicans will treat Ms. Kagan with the same respect and 
professionalism they treated Judge Sotomayor. But questions must be 
answered and clear judgments must be made.
  Madam President, 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.
  Mr. DORGAN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DORGAN. Madam President, I listen sometimes on the floor of the 
Senate and think there should be an Olympic Gold Medal for flexibility. 
It is interesting. For example, the flexibility would mean you are 
flexible enough to understand if a Republican President were to send 
down a nominee for the Supreme Court, and that person had never served 
as a judge previously, that would be a big advantage, and you would 
argue that would be something that is very salutary, that this person 
does not have judicial experience. Such was the case of Chief Justice 
Rehnquist, who did not have such experience. But because they were 
nominated by a Republican, it was a big advantage not to have judicial 
experience. Now a Democrat sends a nominee down and all of a sudden not 
having judicial experience is a liability. That is some flexibility, as 
far as I am concerned.
  I met with the nominee, Ms. Kagan, and she is a great nominee. I am 
sure she is going to be confirmed easily in the Senate. I cannot 
believe the Judiciary Committee will have any opportunity to find very 
much wrong with this very credible, very high-qualified, well-qualified 
nominee. I did not come here to say that. But listening, again, as I 
do, I keep hearing the sound of sawing on the floor of the Senate, 
sawing away in a partisan manner. I simply wanted to observe that much 
of this has very little to do with substance and has everything to do 
with partisan politics that we hear on the floor of the Senate.

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