[Congressional Record Volume 156, Number 104 (Wednesday, July 14, 2010)]
[Senate]
[Pages S5812-S5814]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
KAGAN NOMINATION
Mr. SESSIONS. Mr. President, the week before last, we had the hearing
on Elena Kagan for her nomination to the U.S. Supreme Court, which is a
tremendously serious and important position. Five members of the
Supreme Court--not just nine but only five--can redefine the meaning of
words in our Constitution and really alter, in many ways, the very
structure of our government. We have seen activist judges that I think
have tended in that direction, and it is dangerous and harmful because
judges are given lifetime appointments. They are not accountable to the
public. They are protected. Even their salaries are not reducible while
they serve in office. So we have to know and believe they will be
neutral, impartial, unbiased, and will render judgments based on the
law and the facts and not on any preconceived commitments they may have
had.
Ms. Kagan is now the Solicitor General of the United States. She has
taken some sort of leave of absence in recent weeks since this
nomination occurred, but she holds that title. The Department of
Justice Solicitor General represents the U.S. Government in Federal
court, usually before the Supreme Court, and in important cases before
the courts of appeals and often is involved in setting legal policy for
the United States and helping to advise on that. So it is important
that the American people know, before she is confirmed--if she is
confirmed--that she has not been involved in matters that would bias
her and cause her not to be able to serve impartially under the law and
under the Constitution of the United States. That is an important
question.
The day before yesterday, I believe, the Wall Street Journal had an
editorial entitled ``Kagan and ObamaCare'' in which it raised questions
about the objectivity she might bring to the Court and whether she had
been involved legally in the discussions or drafting the ideas
concerning the development and promotion of the health care reform bill
so massively affecting health care in America. It raised the question:
Should she recuse herself if that comes up, if she has been involved in
that? I think that is a very important question.
The seven Republican members of the Senate Judiciary Committee wrote
yesterday and asked Ms. Kagan to give detailed explanations as to what
extent she may have been involved in any discussions regarding the
promotion or legality of the health care reform bill. I think we are
entitled to that. It is an important matter.
I see my friend Dr. Barrasso on the floor, who has been a great
expert in our debates on health care reform. He has repeatedly
explained how this legislation will impact health care throughout
America. As a physician, he understands that, and he has been able to
explain it to us in ways that any of us should be able to understand.
In fact, he gave us some very serious warnings about the fact that the
promises made for this legislation were not legitimate, weren't real,
weren't accurate, and in study after study and report after report that
has come out, Senator-Dr. Barrasso has been proven correct. The
warnings he gave us that it is not going to reduce costs and that other
difficulties will arise have been proven true--too much, in fact--and
it is a matter of real seriousness.
So I guess I wish to say that a judge should recuse himself or
herself if their impartiality might reasonably be questioned on any
matter that came before them.
I believe Dr. Barrasso has raised previously his concern about what
it really means if the U.S. Government tells an individual American
citizen who is minding his own business that he has to have an
insurance policy. I will recognize him at this point and ask him to at
least share his thoughts on that important issue and why he believes
having a fair judge on the Supreme Court is important.
The ACTING PRESIDENT pro tempore. The Senator from Wyoming.
Mr. BARRASSO. Thank you very much, Mr. President.
I come to the floor today with my friend and colleague because I have
just gotten back from a week of traveling all across the State of
Wyoming, a beautiful State this time of year. People are out and at
parades. I had a chance to visit at several senior centers. The
question that continued to come up was, Can the government force me to
buy health insurance?
A lot of people in Wyoming carry their copy of the Constitution with
them. They carry it in their breast pocket. They carry it with them. It
is in the pickup truck. It is with them all the time. They continue to
look to the 10th amendment, which says:
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.
The people quote that. It just makes sense to the people of Wyoming
that Washington should not be able to come into their communities, into
our State, into their homes, and say: You must buy this product.
So when I see the number of States--20 now--that have filed suit
against the Federal Government because of a new health care law, a law
that I think is going to end up, if it is not repealed and replaced,
being bad for patients, bad for payers, the taxpayers in the country
and the people who pay their own health care bills as well, and bad for
providers--it is a bill that I think is bad medicine, to the point that
Senator Tom Coburn and I, the other physician--there are only two
physicians who practice medicine in the U.S. Senate, and I have been
taking care of people and their families in the State of Wyoming since
1983--we have come up with a report called ``Bad Medicine: A Checkup on
the New Federal Health Care Law.''
There are people who say: I don't like this. Now we have a nominee to
the Supreme Court who is very likely, if this works its way to the
Supreme Court, to have an opportunity to make a ruling, a ruling for
the people of the United States, on whether this body--this Senate,
this House--has a right to tell the American people what product they
must buy, whether it is health insurance, whether it is cars, whether
it is the kind of cereal they eat for breakfast in the morning. The
American people are very concerned.
So I come to the floor also with this editorial from Tuesday, July
13, this editorial entitled ``Kagan and ObamaCare,'' because the
fundamental question is, Should this nominee recuse herself if she is,
in fact, confirmed by this body? One might say: Well, when would
someone recuse themselves from making a decision? Because, after all,
she has been serving in this administration, serving this President,
serving the President who has promoted such a piece of legislation that
forces American citizens, forces the citizens of this country to buy a
product.
The editorial says:
Recusal arises as a matter of judicial ethics if as a
government official she expressed an opinion on the merits of
the health-care litigation. This is what she would have to
render a judgment on were she to be confirmed for the High
Court.
It goes on:
It is also the question on which she is likely to have
participated given her role at the Justice Department.
I would have to turn to my colleague who is the ranking member of the
Judiciary Committee.
It says as well that:
The Solicitor General is the third ranking official at
Justice, its senior expert on Constitutional issues, so it's
hard to believe she wouldn't have been asked at least in
passing about a Constitutional challenge brought by so many
states. The debate about the suit was well underway in the
papers and on TV. The matter surely must have come up at
Attorney General Eric Holder's senior staff meetings, which
the Solicitor General typically attends.
The editorial goes on to say:
We doubt Ms. Kagan would have stayed mum about the cases in
internal Justice councils on grounds that Mr. Obama might
later nominate her to the Court. At the time the Florida suit
was filed on March 23, she was only one of several potential
nominees whose names were being floated by the White House.
So here we have this, and that is when you get back to that opening
[[Page S5813]]
paragraph I read: ``Recusal arises as a matter of judicial ethics.''
So I say to my friend and colleague from Alabama, is this not a
legitimate area of concern, especially in light of the fact that across
this great country people are offended by this law? I just saw a poll
that came out today. The popularity of this new law, which has never
been very popular and which was forced down the throats of the American
people, is now 7 percentage points less popular now than it was even 2
months ago. So something exceptionally unpopular is getting even more
unpopular. By a ratio of 2 to 1, people think it is going to raise
their costs and lessen their quality of care.
Mr. SESSIONS. Mr. President, let me ask the Senator, on that
question, are the American people right or are the people who promoted
this bill right? Are costs going up and is the quality of health care
going down? What is the Senator's opinion?
Mr. BARRASSO. Mr. President, I spent Friday visiting with colleagues,
friends, patients at the Wyoming Medical Center. Across the board,
after talking to physicians, talking to patients, talking to others in
the hospital as well as around the State of Wyoming, people believe it
is going to be bad for patients, those waiting to get their care; bad
for payers, the taxpayers of this country, the individuals who are
paying for their insurance as well; and bad for providers, the nurses
and the doctors whom I talked to. They have incredible concerns about
what the impact is going to be on nurses and doctors when taking care
of patients. The patients' concerns are, are they going to get the kind
of care they want, the kind they are accustomed to, because no matter
where I go in Wyoming, I hear people saying: This is a bill that wasn't
passed to help me; it was passed and forced down our throats to help
someone else, and they are going to make me buy a product that I might
not want to buy, according to a number of criteria the government puts
forward.
They may not want what the government says they have to buy, and then
you get back to the Constitution. Does this government and does
Congress have a right to tell the American people what they must
purchase?
Mr. SESSIONS. This is a fundamental question. The Constitution gives
the U.S. Government the right to regulate interstate commerce, that is
true. The Supreme Court, at times, has taken a most minimal effect on
interstate commerce and says the Federal Government can regulate it.
But I am not aware of a circumstance in which an individual in Wyoming,
or Alabama, minding their own business and not participating in an
interstate commerce health insurance policy in any way, and the Federal
Government waltzes in and says you must participate in this in
interstate commerce--you are not participating in it and they require
that you do participate in it.
If you believe--and there is only one view--that the Constitution is
a government of limited power, it has only powers that are delegated to
it--and they are enumerated powers--then have we crossed a divide here
that we have not crossed before. That is why these lawsuits are being
filed. They are very real. The one in Florida may be farther along than
most of them; it is already out there. Ms. Kagan, at this very moment,
sits as a Solicitor General of the United States--in title, if not
fully acting--and was, I think, before this lawsuit was filed fully
acting, and it impacts the Federal Government. The question we have
asked that I think must be answered by her is exactly what kind of
relationship and discussion she may have had concerning this
legislation.
First, I ask Senator Barrasso--and not being a lawyer can be a
benefit in this body, but I assume from the tone of his comments that
he is a little uneasy that this high official in the Obama
administration--an administration that has committed the whole of its
resources to the passing of this legislation--is now about to rise to
the Court and would be asked to decide what could be a deciding issue
of whether this health care bill stays law or is struck down. So
without the niceties at this moment on recusal issues, does that make
the Senator nervous?
Mr. BARRASSO. The whole health care law makes me nervous. I look at
this and say that the underpinning of this law--the thing that holds it
together--is the mandate on the American people that everyone buy
insurance, that everyone has to have insurance at work or through
Medicare or Medicaid, but if none of those work, you have to buy
insurance. It is the government telling someone they have to buy it.
So I have great concerns when a government thinks it is so powerful,
and this body thinks it is so powerful--more powerful than the American
people. I reject that, and I want to make sure that, as it gets to the
Supreme Court, there are people on the Court who side with the American
people and, most importantly, with the Constitution--what to me the
tenth amendment means--and the people of Wyoming, which is that the
government cannot come into our homes and say you must do this--you
must buy this product.
Mr. SESSIONS. Well, I think that is exactly correct. I will say that
whether or not being a high official in this administration, which is
so committed to passing this legislation, whether that in itself
legally requires a person to recuse themselves on the Supreme Court
from hearing such a case, I am not prepared to say at this moment, but
it makes me uneasy.
I believe a judge who decides that question must be impartial and
cannot be corrupted by friendship or empathy or bias in favor of the
person who appointed them. That is important.
Secondly, I ask Senator Barrasso, our question goes to a more
specific situation that could mandate recusal, and that is whether the
nominee has participated in any discussions, strategies, or making
legal advice designed to promote this legislation. I think that would
be a clear situation that would require recusal.
Also, specific questions could come up regarding to what extent have
these lawsuits that have been filed affected her and has she expressed
any opinions concerning the lawsuits.
Finally, I do not believe the President is entitled to launch onto
the Supreme Court a political loyalist who will be a legal rubberstamp
for anything that gets proposed, whether it is the takeover of AIG or
of automobile companies or other things that may be decided. I think we
need to be careful about this.
This nominee needs to answer those questions because what the Senator
is hearing is what I hear.
Mr. BARRASSO. I ask my colleague this, as he participated in the
hearings and the questioning. Apparently, Ms. Kagan says she will
recuse herself from participating in a number of cases--I think 11--on
which she represented the government in her current job as Solicitor
General.
It seems that in a case such as this--the area that the President of
the United States put all of his credibility and effort into forcing
through this body and through the House and, in my opinion, jamming
down the throats of the American people--if she is already going to
recuse herself on 11 other issues, it seems to me that we should also
get that sort of a commitment on this issue.
As the Senator has said--and he has practiced law--recusal arises as
a matter of judicial ethics. Now we are talking about the ethics of the
individual involved, and the decisions that person would then make
based on the position to which they are nominated.
Mr. SESSIONS. I believe that is correct. The standard is, among other
things, if your impartiality might reasonably be questioned--and many
judges are very sensitive about this--if you own a bunch of stock and
you have one share in a big company like GE, and a case involving GE
comes before you, you are expected to recuse yourself, even though it
is unlikely to have an impact on your finances. But it doesn't look
good.
I think we are entitled to know how sensitive this nominee is going
to be to the dangers of her impartiality being questioned, even if her
actions are not such that clearly, as a matter of judicial ethics,
mandates her recusal. I think we need to talk about that, and I feel
like the American people that we meet with, who are concerned about
governmental overreach, who wonder if we have lost all sense of the
limited power of this government in Washington, I believe those people
are entitled to have absolute confidence that
[[Page S5814]]
anybody confirmed to the Supreme Court will not sit on a case if they
can't be impartial, or if their impartiality could even reasonably be
questioned.
I thank the Senator for his leadership on the issue, and I am glad we
had this colloquy. I hope we are going to get a complete answer from
the nominee soon about any involvement she may have had explicitly, and
then to perhaps also inquire further about to what extent she will be
prepared to not participate if her impartiality can be questioned.
Mr. BARRASSO. If I can ask a final question. The final paragraph of
this editorial that the Senator will introduce into the Record says:
As someone who hopes to influence the Court and the law for
decades--
We are talking about an appointment that could last a lifetime, 30 or
40 years.
Ms. Kagan should not undermine public confidence in her fair-
mindedness by sitting in judgment on such a controversial
case that began when she was a senior government legal
official.
It seems to me--and I ask the Senator at this time--where someone may
be embarking on a long career on the Court, wanting to do the right
thing and head in the right direction, that the best decision would be
to recuse herself from this case as well, if she is confirmed, rather
than get involved in it and potentially have an impact on her
reputation for decades to come.
Mr. SESSIONS. I think that is correct. I appreciate the way the Wall
Street Journal expressed that. I think that is a legitimate position. I
hope the nominee will take very seriously those concerns and will
respond promptly to the questions we have asked of her.
I ask unanimous consent that the Wall Street Journal editorial be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Wall Street Journal, July 13, 2010]
Kagan and ObamaCare
Elena Kagan breezed through her recent confirmation
hearings, but there's some crucial unfinished business the
Senate should insist on before voting on her nomination to
the Supreme Court. To wit, she ought to recuse herself from
participating as a Justice in the looming legal challenges to
ObamaCare.
In response to Senate queries, Ms. Kagan has said she'll
recuse herself from participating in 11 cases on which she
represented the government in her current job as Solicitor
General. The challenge to ObamaCare isn't one of them, though
the cases brought by Florida and 20 other states were filed
in March, well before President Obama announced her
nomination on May 10.
Ms. Kagan was never asked directly at her hearings about
her role as SG regarding the healthcare lawsuits. The closest
anyone came was this question from Oklahoma Republican Tom
Coburn: ``Was there at any time--and I'm not asking what you
expressed or anything else--was there at any time you were
asked in your present position to express an opinion on the
merits of the health-care bill?''
Ms. Kagan: ``There was not.''
Regarding a potential recusal, that's not the right
question. Ms. Kagan was unlikely to have been consulted on
the merits of health-care policy, and even if she did express
an opinion on policy this would not be grounds for recusal.
The legal precedents on that are clear.
Recusal arises as a matter of judicial ethics if as a
government official she expressed an opinion on the merits of
the health-care litigation. This is what she would have to
render a judgment on were she to be confirmed for the High
Court. It is also the question on which she is likely to have
participated given her role at the Justice Department.
The SG is the third ranking official at Justice, and its
senior expert on Constitutional issues, so it's hard to
believe she wouldn't have been asked at least in passing
about a Constitutional challenge brought by so many states.
The debate about the suit was well underway in the papers and
on TV. The matter surely must have come up at Attorney
General Eric Holder's senior staff meetings, which the SG
typically attends.
We doubt Ms. Kagan would have stayed mum about the cases in
internal Justice councils on grounds that Mr. Obama might
later nominate her to the Court. At the time the Florida suit
was filed on March 23, she was only one of several potential
nominees whose names were being floated by the White House.
Under federal law (28 U.S.C., 455(b)(3)), judges who have
served in government must recuse themselves when they have
``participated as counsel, adviser or material witness
concerning the proceeding or expressed an opinion concerning
the merits of the particular case in controversy.''
Though their public chance has passed, Senators can still
submit written questions to Ms. Kagan for the record. We hope
someone asks her directly whether the legal challenges to
ObamaCare ever arose in her presence at Justice, whether she
was ever asked her views, and what she said or wrote about
the cases.
We also think there are grounds for recusal based on her
response during her Senate hearings on the substance of the
state legal challenge. The Florida case boils down to whether
Congress can compel individuals to buy health insurance under
the Commerce Clause. Ms. Kagan danced around the history of
Commerce Clause jurisprudence, but in one response to Senator
Coburn she did betray a bias for a very expansive reading of
Congress's power.
The Commerce Clause has ``been interpreted to apply to
regulation of any instruments or instrumentalities or
channels of commerce,'' she said, ``but it's also been
applied to anything that would substantially affect
interstate commerce.'' Anything? This is the core question in
the Florida case. If she already believes that the Commerce
Clause justifies anything that substantially affects
interstate commerce, then she has all but prejudged the
individual mandate question.
A federal judge is required by law to recuse himself ``in
any proceeding in which his impartiality might reasonably be
questioned.'' This has been interpreted to mean that the mere
public expression of a legal opinion isn't disqualifying. But
this is no routine case.
Ms. Kagan would sit as Mr. Obama's nominee on the nation's
highest Court on a case of momentous Constitutional
importance. If there is any chance that the public will
perceive her to have prejudged the case, or rubber-stamped
the views of the President who appointed her, she will damage
her own credibility as a Justice and that of the entire
Court.
As someone who hopes to influence the Court and the law for
decades, Ms. Kagan should not undermine public confidence in
her fair-mindedness by sitting in judgment on such a
controversial case that began when she was a senior
government legal official.
The ACTING PRESIDENT pro tempore. The Senator from Washington is
recognized.
Mrs. MURRAY. Mr. President, I ask unanimous consent to speak as in
morning business.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
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