[Congressional Record Volume 156, Number 104 (Wednesday, July 14, 2010)]
[Senate]
[Pages S5799-S5800]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OF ELENA KAGAN
Mr. CARDIN. Mr. President, next week, the Senate Judiciary Committee
will be voting on the nomination of Elena Kagan to be the next
Associate Justice of the Supreme Court of the United States. This vote
in the Judiciary Committee follows 4 days of hearings on her
nomination. As the Acting President pro tempore knows, she is currently
the Solicitor General of the United States. We not only had 4 days of
hearings, every member of the Judiciary Committee had ample opportunity
to ask questions and get responses from Ms. Kagan. We heard from
outside witnesses, some who were directly affected by decisions of the
Supreme Court of the United States. We reviewed tens of thousands of
pages of documents.
I pointed out during these hearings why Americans should be so
concerned about who the next Associate Justice of the Supreme Court
will be because the decisions of the Supreme Court affect your life. If
you work, if you are a woman, if you vote, if you care about the air
you breathe or the water you drink, if you are a consumer, you need to
be concerned about the Supreme Court of the United States.
The Constitution protects us from the abuses of power, whether those
powers are generated by government or powerful special interests. The
Supreme Court was designed to be the protector of our constitutional
rights.
We the people of the United States--
``We the people''--
in Order to form a more perfect Union, establish Justice,
insure domestic Tranquility, provide for the common defence,
promote the general Welfare, and secure the Blessings of
Liberty to ourselves and our Posterity, do ordain and
establish this Constitution for the United States of America.
The authors of the Constitution understood the timeless idea that
justice was paramount. After questioning Solicitor General Kagan and
listening to her testimony for a week, I am convinced she has a clear
understanding of how profound an impact her future decisions may have
on the lives of everyday Americans.
Based on the hearing and the conversations I have had with her, I am
confident she will put the interests of the American people and justice
for the American people first, above popular opinion or politics.
As Solicitor General Kagan said in her opening statement to the
committee, equal justice under law ``means that everyone who comes
before the Court--regardless of wealth or power or station--receives
the same process and protections. . . . What it promises is nothing
less than a fair shake for every American.''
During the confirmation hearings, I asked Solicitor General Kagan
about civil rights, campaign financing, and our environment. I used
those three areas to demonstrate how important the decisions of the
Supreme Court can be in the lives of everyday Americans. My concerns
about recent Supreme Court decisions were an activist court that, by
the narrowest margins--usually 5-to-4 decisions--reversed precedent,
legislated from the bench, and ruled on the side of businesses over
individual rights.
In civil rights, I think the importance of the Supreme Court was
underscored by the decision of Brown v. Board of Education which opened
educational opportunity for the people of this Nation. I pointed out
during the hearings before the Judiciary Committee that it was Thurgood
Marshall, a young attorney from Baltimore, who argued that case before
the Supreme Court and then became, as the Presiding Officer knows, the
first African-American Justice on the Supreme Court of the United
States, and one of his law clerks was Elena Kagan.
Recent decisions of the Supreme Court underscore my concern as to
[[Page S5800]]
whether the Supreme Court is following legal precedent to protect the
civil rights of the people of our Nation. The Ledbetter decision dealt
with gender equity. Here the Supreme Court, by a 5-to-4 decision,
reversed precedent and the clear intent of Congress to deny women the
opportunity to effectively enforce their rights for equal pay by saying
to Ms. Ledbetter that she had to bring her case on pay discrimination
within 180 days of the discrimination, although it was impossible for
her to discover she was being discriminated against during that period
of time. Now we have taken action in the Senate to reverse that, and
President Obama signed legislation to reverse it, but the Supreme Court
never should have ruled against American workers and women in the
Ledbetter decision.
I also mentioned the Gross decision which deals with age
discrimination where the Supreme Court reversed its own precedent and
clear congressional intent to deny an effective remedy on age
discrimination, changing the standards in order for a person to be able
to bring a case.
I talked about campaign finance and the Citizens United case where
the Supreme Court, again by a 5-to-4 decision, reversed precedent,
reversed congressional action, and allowed more corporate money into
our election system. Corporations don't have enough power already? The
Supreme Court gave corporations even more influence in our Federal
election process.
I was impressed, and I think the members of the Judiciary Committee
were impressed, that the first case Solicitor General Kagan decided to
argue before the Supreme Court was to try to uphold our action in
Congress regarding campaign finance reform. I think Justice Stevens got
it right when he said:
Essentially, five Justices were unhappy with the limited
nature of the case before us, so they changed the case to
give themselves an opportunity to change the law . . . there
were principled, narrower paths that a Court that was serious
about judicial restraint could have taken.
Then, in the environmental arena, I mentioned the Rapanos case where
the Supreme Court, once again by a 5-to-4 decision, reversed the clear
intent of Congress and legal precedent to restrict the Environmental
Protection Agency's ability to protect the clean waters of our Nation
under the Clean Water Act. Then, once again, in Exxon v. Baker, the
Supreme Court just very recently restricted the amount of claims that
can be brought in regards to polluters in the Exxon Valdez issue. That
is of particular concern to all of us who are trying to make sure those
who have been victimized by the BP oilspill have an effective remedy
and that taxpayers don't have to provide bailout for the damages caused
by BP Oil.
Solicitor General Kagan stated, in answer to questions before us:
Congress certainly has broad authority under the
Constitution to enact legislation involving the protection of
our environment. When Congress enacts such legislation, the
job of the courts is to construe it consistent with
Congressional intent.
Well, that is the type of person I would like to see, and I hope all
of us would like to see, on the Supreme Court of the United States,
giving due deference to Congress as the legislative body under the
Constitution. She said: The job of the courts is to construe the laws
consistent with congressional intent.
I am puzzled by those who have defended these Supreme Court decisions
that have taken away our citizens' rights for civil liberties and civil
rights and who say that corporations don't have enough power in this
country so they need more power; who have jeopardized our environment
and have supported those decisions, even though it reverses previous
precedent and even though it is legislating from the courts, reversing
congressional action. Those who profess to be against judicial activism
have supported those decisions by the Supreme Court of the United
States.
I am confident Elena Kagan will follow legal precedent. She will
respect the rights of the Congress of the United States to legislate.
She will protect our rights against the abuses of power, whether it is
from the government or from powerful corporate special interests. She
will respect the rights of the people of this Nation that the
Constitution was so well designed to deal with.
Lastly, let me say she is well qualified to serve on the Supreme
Court of the United States. She was the dean at Harvard Law School,
Solicitor General of the United States, commonly referred to as the
10th justice because of how closely she has worked with the Supreme
Court. She has received bipartisan support from those who know her
best. Former Solicitors General of the United States, appointed by both
Democrats and Republicans, support her nomination to be the next
Associate Justice of the Supreme Court of the United States. When we
confirm her appointment, she will be one of three women to serve on the
Supreme Court of the United States, the first time in the history of
America and a proud moment for this body to confirm her nomination.
Next Tuesday, I will vote to confirm Elena Kagan to be the next
Associate Justice of the Supreme Court of the United States. I look
forward to when each Member of the Senate will have an opportunity to
vote on her confirmation, and I hope it will be an overwhelming
confirmation for her to serve the American people on the Supreme Court
of the United States.
With that, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Nebraska.
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