[Congressional Record Volume 156, Number 105 (Thursday, July 15, 2010)]
[Senate]
[Pages S5933-S5943]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       NOMINATION OF ELENA KAGAN

  Mr. SPECTER. Mr. President, I have sought recognition to state my 
position on the nomination of Solicitor General Elena Kagan to be 
Associate Justice of the Supreme Court of the United States and to 
comment about the appropriate role of the Senate, what is happening to 
the doctrine of separation of powers, and how institutionally the 
Senate might assert itself to stop the erosion of powers from this body 
to the Court and from the Congress to the executive branch.
  I am supporting Ms. Kagan because of her intellect, her professional 
background, her academic background, and because I think she will be an 
effective balance in the ideological battle which is being waged in the 
conference room of the Supreme Court--the ideological balance which is 
so sorely needed at the present time.
  The hesitancy I have had, as I have expressed it in the hearings, has 
been on the failure of Ms. Kagan to respond with substantive answers so 
that Senators would have a realistic idea as to where she stands 
philosophically on some of the very important questions of the day--not 
how she would decide cases but what standards she would apply if 
confirmed, and I will be very specific about that.
  It has been especially troublesome because Ms. Kagan has been 
outspoken in the past about the importance of having substantive 
answers in nomination proceedings. She wrote a now-famous article for 
the University of Chicago Law Review criticizing Supreme Court 
proceedings on nominations by saying that they were vacuous and a farce 
and by name criticized Justice Ruth Bader Ginsburg and Justice Stephen 
Breyer for not answering questions and, in effect, criticized the 
Senate and Senators for not asking and pressing questions to find out 
where nominees stood. There was a similar article written by a young 
lawyer in Phoenix, AZ, named Bill Rehnquist, back in 1958, for the 
Harvard Law Record, where he criticized the confirmation proceeding of 
Supreme Court Justice Whittaker, saying that the Senate did not ask 
questions about the important substantive matters. During the 
confirmation of Chief Justice Rehnquist, I asked him a series of 
questions which he declined to answer; I cited his own words, and then 
he answered a few--not very many, just about enough to be confirmed. 
Which has been my conclusion, generally, having been a party now to 13 
confirmation hearings. Nominees answer just about as many questions as 
they think they have to.

  When Justice Scalia came up for confirmation in 1986, he answered 
virtually nothing. When the question came up about Marbury v. Madison, 
he said: Well, I can't answer that question. It might come before the 
Court.
  May the Record show the look of amazement on the face of the 
distinguished Senator from Minnesota who is presiding. I was frankly 
amazed by it myself.
  But, with the tenor of the times, following the very contentious 
nomination proceeding of Chief Justice Rehnquist, and other factors, 
Justice Scalia was confirmed handily, 98 to nothing.
  I have seen him frequently at social events. I saw him at one a 
couple of weeks ago. I commented to a group standing with him that 
prisoners of war give their name, rank, and serial number, but in the 
Scalia nomination proceeding he would only give his name and rank. It 
just about amounted to that.
  Following the hearing on Justice Scalia, Senator DeConcini and I were 
formulating a resolution which would establish standards that Senators 
would insist on, or could insist on--some guidance to try to get more 
forthcoming answers. Then we had the confirmation hearing of Judge 
Robert Bork, who answered questions. Judge Bork did so in a context of 
having very extensive legal writings, an article in the Indiana Law 
Journal in 1971 on original intent. In the context of that article, and 
books, many speeches, law review articles, I think it is realistic to 
say that Judge Bork had no alternative but to answer questions.
  Since the Bork hearings, the pattern has evolved where nominees do 
not give substantive answers. It is a well-known fact of confirmation 
life that there are murder boards. That is what they call them, when 
the nominee goes down to the White House and they have practice 
sessions. Since that time it has been pure prepared pablum. That is 
what we get in these hearings.
  So there had been reason to expect more from Ms. Kagan. We didn't get 
it. I had expressed at the hearings the concern as to how we could get 
answers on substantive issues and was there any way to find that out 
short of voting ``no,'' and rejecting a nominee? I decided it would not 
be sensible to vote no to issue a protest vote in the context of what 
has regrettably become

[[Page S5934]]

the standard. Ms. Kagan was following the accepted practice. Why not, 
in the face of that strong advice from the White House and the success 
of all of the nominees who have stonewalled and been confirmed?
  I have since discussed with a number of my colleagues the prospect of 
reverting to what Senator DeConcini and I had thought about in early 
1987, to try to establish some standards. Not that Senators would be 
bound to follow them. We have our stature under the Constitution to ask 
questions as we choose. We cannot compel answers. Perhaps they would 
not be followed. But it could obviate one line of excuse that nominees 
have given: They better not be too specific or they may breach the 
standard of ethics. If the Senate were to establish standards as to 
what we were looking for, for confirmation--it is our constitutional 
role--there might be some benefit.
  In looking further, to try to make a determination on the Kagan 
nomination, there were two of her responses which I found impressive. 
One was her comments about Justice Thurgood Marshall, for whom she had 
clerked, who was a role model. There was extensive testimony about her 
admiration for the way he decided cases. I inferred from that, that 
looking as best I could to find her philosophy, ideology, where she 
would stand, that she would be protective of civil rights, protective 
of constitutional rights, of individual rights, and respectful of 
rights of the Congress.
  The second line of answers which she gave which I thought--and I do 
think--is very important is her very positive attitude about televising 
the Supreme Court. I will come to that in a few minutes, because there 
is an urgent need to find some line to have some influence on the Court 
as to their following precedent on stare decisis, as to their 
respecting the constitutional role of the Congress in fact finding. 
They have judicial independence and are the bulwark of the Republic. 
The rule of law is what makes the United States famous for the 
stability of our government and that is very highly prized. In the long 
history of this country, it has been the courts which have protected 
civil rights. It was the Supreme Court, as we all know, in Brown v. 
Board of Education, where the Court did what the Congress did not have 
the political courage to do, nor did the President have the political 
courage to do, to integrate schools in America--the best example but 
only one example of where the courts have stood up as a bulwark to do 
what the elective branches have not had the political courage to do.
  Now on to the specifics, as to the concerns on the substantive 
questions to which Ms. Kagan did not give substantive answers. I 
pressed her hard on the separation of powers. We all know of the three 
branches of government. Congress was article I, thought by the Framers 
to be the most important; the executive, President, No. II; and the 
Court, No. III. I think if the Constitution were to be rewritten today 
the numbers would be changed. The Court would be No. I, and the other 
branches would be a distant second and third, but again the executive 
would be ahead of the legislative branch because of the way the Court 
has interpreted the law.
  Coming to the first line of legislative responsibility, it is fact 
finding on which we make a determination of what ought to be enacted by 
way of public policy. The Supreme Court of the United States has 
changed the rules of the game. For a long time it was a ``rational 
basis'' test, to decide whether the record was sufficient for the 
legislation which was enacted.
  Then, in 1997, in a case captioned City of Boerne, the Supreme Court 
of the United States adopted a new standard: Was the evidence 
proportionate and congruent; the test of proportionate and congruent. 
That test, with its fluidity, has been the basis for the Supreme Court 
legislating, taking over from the Congress. Now it is the Supreme Court 
which decides the sufficiency of the record on a test which is not 
discernible with any specificity. Justice Scalia has called the test a 
``flabby test,'' which is used for judicial legislation. That was the 
fact in the case of United States v. Morrison, which tested at the time 
constitutionality of legislation to protect women against violence and 
there was, in the hearings leading to that important legislation, a 
mountain of evidence as described by Justice Souter in dissent. Yet the 
Court overturned that important statute to protect women against 
violence, citing the Congress's ``method of reasoning.'' It is a little 
hard to understand what that means. We are not perfect around here. 
There are a lot of failures in this body, especially now--even some 
failures across the Rotunda in the House of Representatives. But who 
can challenge the method of reasoning and what miraculous occurrence is 
there, when somebody leaves the hearing room of the Judiciary 
Committee, walks across Constitution Avenue, across the green from this 
Chamber, and suddenly is in a position to have some superior reasoning? 
But that legislation went down, as has so much legislation.
  Another illustration is in Citizens United, where a 100,000-page 
report was amassed, detailing the problems with what goes on with money 
in politics and what the corrupting influence is. As a result, the 
McCain-Feingold law was passed, and, in Citizens United, the critical 
section was declared unconstitutional. So there you have a tremendous 
shift in power from the Congress of the United States to the courts, to 
the Supreme Court. What we legislate on our traditional standards--we 
have the institutional expertise, and I am going to come to that in 
some greater detail in a few moments, analyzing the positions which 
have been taken by Chief Justice Roberts and Justice Alito.
  But first an analysis of a decisive shift from the power of the 
Congress of the United States to the executive branch, to the 
President. Here again I will be specific. Arguably the most dramatic 
historic confrontation between Congress and the President is the 
Foreign Intelligence Surveillance Act, which establishes the exclusive 
way to invade privacy and get a wiretap contrasted with the Terrorist 
Surveillance Program, initiated by President Bush, for warrantless 
wiretapping.
  It was a Friday in December of 2005. I chaired the Judiciary 
Committee. We were in the final day on the reauthorization of the 
PATRIOT Act, and that morning the New York Times broke the information 
about this secret program of warrantless wiretapping.
  As it was expressed on the floor that day, Senators who had been 
prepared to vote to reauthorize the PATRIOT Act declined to do so. 
There was an extended proceeding--which is not relevant to the specific 
point I am making now. But back to the point, a Federal judge in 
Detroit declared the Terrorist Surveillance Program unconstitutional. 
The case went on appeal to the Court of Appeals for the Sixth Circuit, 
which declined to hear the merits in a 2-to-1 decision on standing 
grounds.
  The petition for cert. to the Supreme Court to take the case was 
denied, no reason given. The doctrine of standing is a very flexible 
doctrine, which I think, in a practical sense, although inelegantly 
stated, accurately stated, it is the way the Court ducks a case if they 
don't want to hear the case. It avoids a judicial decision. But any 
fair-minded reading of the dissenting opinion in the Sixth Circuit 
would say there was plenty of room for a judicial decision, adequate 
basis for standing in that case.
  We currently have before the Judiciary Committee legislation on 
another issue which illustrates the shift of power from the Congress to 
the executive branch because of the failure of the Supreme Court to 
decide a case, and that involves the litigation brought by survivors of 
people killed on 9/11 against, among others, the Government of Saudi 
Arabia, Saudi princes, and Saudi charities, litigation where there is 
an enormous factual record showing the connection between financing of 
al-Qaida and the Saudi charities, which are really instrumentalities of 
the Saudi Government, and showing the financing from Saudi princes and 
from the government itself.
  The Second Circuit denied the claim on what I think is a spurious 
ground, saying that Saudi Arabia is not on the list of countries 
declared by the State Department to be terrorist states. Well, there is 
an alternative under the immunity statute, and that is for tortious 
conduct, that is wrongful actions. Certainly that would encompass 
flying a plane into a building. And Senator Schumer, Senator Lindsey 
Graham, and I have introduced legislation to clarify this issue.

[[Page S5935]]

  When an application was made for certiorari to the Supreme Court, the 
administration opposed having the Supreme Court hear the case on the 
ground that the acts by the Saudis in financing the terrorists occurred 
outside of the United States. That hardly is a rational basis when you 
plot in Saudi Arabia and pay money to bring terrorists to the United 
States, to board airplanes, to hijack the planes to fly into American 
buildings, to fly and crash in Pennsylvania, fly and crash into the 
Pentagon. That certainly happened in the United States. It is arguably 
the most barbaric conduct in the history of mankind, certainly among 
the terrorists.
  Now I mention these cases because when I pressed Ms. Kagan--and 
others did--what standard would you apply? Going back to the 
factfinding, the two standards are proportionate and congruent, 
contrasted with rational basis.
  Now, that is not asking a nominee to decide a case; that is asking a 
nominee to decide a standard--certainly well within the ambit of Ms. 
Kagan's famous law review article in 1995. But she simply stated she 
would not answer.
  On the cases involving the terrorist surveillance program and on the 
9/11 litigation, would she grant to hear the case--not how she would 
decide the case but would she take the case? Again, a refusal to answer 
the question.
  So in this context, we are really searching for ways to find out more 
about the nominees, and Ms. Kagan has said just enough to get my vote 
because of voting my hopes, rather than my fears, that she will be in 
the mold, as a general sense, of Justice Thurgood Marshall and also 
because of her position on television, which I think has the potential 
for being a very ameliorating factor in what goes on in the Supreme 
Court, and that is the business of publicity.
  The famous article ``What Publicity Can Do'' by lawyer Louis D. 
Brandeis back in 1913 provides insights as to where we might go in the 
modern world with television. In that article, Brandeis made the famous 
statement that, ``Sunlight is said to be the best of disinfectants.'' 
Well, that may be a little strong for these circumstances. We are not 
exactly looking at it as a disinfectant, but neither was Brandeis, and 
he was really talking about publicity as the way to deal with problems 
in our society. I believe that if we had publicity and people 
understood what was going on, there would be a realistic chance to have 
the Court respect the powers of Congress and have the Court respect the 
separation of power between the President and the Congress.
  I now turn to the confirmation proceedings as to Chief Justice 
Roberts and Justice Alito, which bear very heavily on this subject. 
Both of the nominees were questioned at length during the course of the 
nomination proceeding, and this is what Chief Justice Roberts testified 
to on the question of factfinding:

       The reason that Congressional factfinding and determination 
     is important is because the courts recognize they can't do 
     that. The Supreme Court cannot sit and hear witness after 
     witness in a particular area and develop that kind of a 
     record. Courts can't make the policy judgments about what 
     type of legislation is necessary in light of the findings 
     that are made. The courts don't have it, Congress does. It is 
     constitutional authority. It is not our job.

  He goes on to say:

       When the courts engage in factfinding, they are really, in 
     effect, legislating.

  These are his exact words in the confirmation hearing:

       As a judge, you may be beginning to transgress into the 
     area of making a law. That is when you are in a position of 
     reevaluating legislative findings because that doesn't look 
     like a judicial function.

  This is what Justice Alito had to say in his confirmation hearing:

       The Judiciary is not equipped at all to make findings about 
     what is going on in the real world, not this sort of 
     legislative findings. And Congress, of course, is in the best 
     position to do that. Congress can have hearings and examine 
     complex social issues, receive statistical data, hear 
     testimony from experts, analyze that and synthesize that and 
     reduce that to the findings.

  These two Justices were in the five-person majority which disregarded 
100,000 pages of congressional findings to make a declaration that 
McCain-Feingold was unconstitutional.
  Then you had the similar issue of stare decisis.
  The best way to limit judicial activism is by respecting what the 
Congress has done on factfinding, and when the Court disregards 
congressional factfinding and substitutes its own judgment on policy, 
they are making the law. That is conceded by the citations I have read.
  Then there was extensive questioning of both Chief Justice Roberts 
and Justice Alito on the issue of stare decisis.
  This is what Chief Justice Roberts had to say, in part, about stare 
decisis:

       I do think that it is a jolt to the legal system when you 
     overrule a precedent. Precedent plays an important role in 
     promoting stability and evenhandedness. It is not enough that 
     you may think the prior decision was wrongly decided.

  Justice Alito said about the same thing, in part:

       It is important--

  That is, stare decisis is important--

     because it limits the power of the judiciary. It is important 
     because it protects reliance interests.

  These are two of a five-person majority which decided in Citizens 
United that McCain-Feingold was unconstitutional.
  This is what Seventh Circuit Judge Richard Posner, a distinguished 
jurist and a commentator on the Court, had to say about the role of 
Chief Justice Roberts in these decisions, coming from his book ``How 
Judges Think'':

       Less than two years after his confirmation, he demonstrated 
     by his judicial votes and opinions that he aspires to remake 
     significant areas of constitutional law. The tension between 
     what he said at his confirmation hearing and what he is doing 
     as a justice is a blow to Roberts's reputation for candor and 
     further debasement of the already debased currency of the 
     testimony of nominees at judicial confirmation hearings.

  In going into these issues, as to the contrast between what Chief 
Justice Roberts and Justice Alito testified to and what they have done 
once on the Court, I do not challenge their good faith. I understand 
the difference between what happens in a judicial confirmation hearing 
and what happens in court when there is a case in controversy to be 
decided by the Justices of the Supreme Court. But these variations are 
so stark that had there been an understanding by Senators on these 
confirmation hearings as to the judicial philosophy and how factfinding 
would be handled in court and how precedents and stare decisis would be 
handled in court, to take the opinion by Chief Justice Roberts, his 
concurring opinion in Citizens United where they disregarded the Austin 
case as an ``aberration''--there is your license to eliminate stare 
decisis: the case is an aberration, down the drain. So what happened to 
precedent? Is Roe v. Wade safe based on that standard? I questioned 
Chief Justice Roberts at length about Roe v. Wade and the successor 
case, Casey, and how the case stood.
  Austin was not reversed when the Supreme Court had an opportunity to 
do so. Chief Justice Roberts says in his opinion: Well, nobody asked 
the Supreme Court to reverse the Austin case. Well, the way the Court 
reached for the Hillary movie in Citizens United, the way they 
reconstructed the issue, you do not have to--it is a thin veneer to say 
that the Court is guided and that it is determinant who raises an issue 
and who asked the Court for a decision.
  What can be done to have Justices adhere to standards agreed to at 
their hearings? I spoke earlier about the sanctity of judicial 
independence and how the Court is the bulwark of our Republic and the 
rule of law. The most promising idea that I have found is to 
demonstrate to the public what the Court does, how powerful the Court 
is, and how it makes decisions on the cutting edge of all of the 
judgments in society. It decides who lives and who dies, a woman's 
right to choose. It decides on late-term abortion. It decides on the 
death penalty. It decides whether juveniles may be executed for crimes 
committed below the age of 18. It decides affirmative action, who goes 
to school, who gets into the best colleges, who gets a job. It decides 
assisted suicide. It decides cases of international law. It is the 
ultimate arbiter on all the cutting-edge issues.
  America is cited as being the most litigious country on the face of 
the Earth, but there is not an understanding among the public as to how 
far the power of the Supreme Court is,

[[Page S5936]]

how they have taken it from the Congress, how they have let the 
executive branch take it from the Congress.
  In an article published yesterday in the Washington Post, Stuart 
Taylor, Jr., a noted commentator on the Supreme Court, had some 
interesting observations on this precise subject. This is what he wrote 
in part:

       The key is for the Justices to prevent judicial review from 
     denigrating into judicial usurpation.

  This goes right to the point of separation of powers, to defer far 
more often to the elected branches. Well, that is the Congress. That is 
the hue and cry. That is the question asked every time we have a 
confirmation hearing in the Judiciary Committee: Will you interpret the 
law rather than make the law? But these are matters where demonstrably 
they make the law.
  Then Taylor goes on to write:

       . . . the justices know that as long as they stop short of 
     infuriating the public, they can continue to enjoy better 
     approval ratings than Congress and the President, even as 
     they usurp those branches' powers.

  This is an interesting test, the first time I have seen it 
articulated this way. It is the ``infuriating the public test.'' 
Whatever you may say in a democracy, in our society, the public has the 
ultimate power, and it is felt in many ways, perhaps even by osmosis. 
But wherever you go, when the public attitude changes on segregation, 
the Supreme Court changes the decision. When the public attitude 
changes on sexual orientation, the Supreme Court's position changes on 
sodomy cases. When we find so many States recognize same-sex marriage, 
it is a change recognized by the courts, as the Massachusetts court 
recently did in declaring the Defense of Marriage Act unconstitutional. 
It wouldn't have happened when it was passed 86 to 14 in the Senate of 
the United States in 1996. So how do we activate the doctrine of 
``infuriating the public''?
  The best way, to my knowledge, is to televise the Court. In that 
magnificent chamber across the green from where I stand, we have a room 
which seats about 300 people fighting to get in there for about 3 
minutes. That is where the most important business of the country is 
being conducted. Years ago the Supreme Court decided that when it came 
to judicial proceedings newspapers had a right to be in the courtroom. 
That same logic would give television cameras and electronic radio 
similar rights to inform the public. That was a case in 1940. Today the 
information is gleaned largely from television and, to a lesser extent, 
by radio. So if the public knew what was going on in the Supreme Court, 
if they understood it, there would be a chance that they would be a 
little more respectful of the constitutional doctrine of separation of 
powers.
  When the case of Bush v. Gore was scheduled for argument, then-
Senator Biden and I wrote to Chief Justice Rehnquist asking that 
television cameras be permitted inside the courtroom. To get inside the 
courtroom that day, one practically had to be on the Judiciary 
Committee. It was packed. Americans should have been able to see it.
  Surrounding the building on all sides were mobile television units. I 
am not sure exactly what they were doing. The most they could have 
would be stand-ups outside the chamber because they couldn't get inside 
the chamber. That day the Supreme Court did release an audio of the 
proceedings, which was a novelty at that time. They have done that 
occasionally since, but relatively rarely.
  Mr. President, in the face of these factors, I have been pressing for 
more than a decade for legislation to televise the Supreme Court. It 
has come out of the Judiciary Committee, once 12 to 6, and, most 
recently this year, 13 to 6, first, a legislative proposal which would 
call for the Supreme Court to be televised and, second, a sense-of-the-
Senate resolution urging the Supreme Court on its own to be televised.
  I believe as a legal matter that the Congress has the authority to 
require the Supreme Court to be televised. I say that because it is an 
administrative function. Congress has the authority to decide, for 
example, how many Justices there will be on the Court, illustrated by 
the famous Roosevelt Court packing plan where the effort was made to 
raise the number from 9 to 15 new faces to control the decision. The 
Congress by law establishes the number of Justices--six--for a quorum. 
The Congress decides that the Court will begin its session on the first 
Monday in October. The Congress has set the time limits on habeas 
corpus matters in the appellate system under the Speedy Trial Act. I 
think a strong case--in fact, the appropriate conclusion--is that 
Congress has the authority to act in this field.
  There are now cameras in the United Kingdom's Supreme Court. They are 
now televised in Canada. They are now televised in many State supreme 
courts. They are now televised in two Federal appellate courts.
  A recent poll was conducted and released on the day of the start of 
hearings on Solicitor General Kagan. That poll, conducted by C-SPAN, 
showed that 63 percent of the American people think the Court ought to 
be televised. Among the 37 percent who said no, when they were told 
that the proceedings are open to the public but people have to come to 
Washington to see them and can only stay for 3 minutes, most of those 
folks decided they ought to have television.
  So the number went from 63 to 85 percent of the American people who 
think the Supreme Court ought to be televised. That is a pretty good 
indication that the Congress ought to act; that if the Supreme Court 
will not open its doors on a voluntary basis, the Congress ought to 
respond.
  On recent nominations I have asked every nominee: What is your 
attitude on television? I was pleased. Both in the informal meeting 
with Ms. Kagan and in her testimony before the Judiciary Committee, she 
said she was in favor of television; that the more information the 
public has, the better off our society is. It is a pretty obvious 
conclusion, but she would press the issue if seated.
  Another key factor in my affirmative vote for Ms. Kagan is her sense 
of humor, her quick wit, which she displayed. She was even almost a 
match for the distinguished junior Senator from Minnesota, who has had 
some expert experience in that line. I think that will stand her in 
good stead in the ideological battle in that small conference room 
where these big decisions are made.
  Chief Justice Roberts said he would be open to the idea. Justice 
Alito testified he voted for it on the Third Circuit but would want to 
confer with his colleagues. I believe Justice Breyer said in a hearing 
on the budget in the House of Representatives a few months ago that 
television was inevitable. Justice Ginsburg was quoted at one point as 
saying that if it were gavel to gavel, it would be satisfactory. 
Justice Scalia has been negative about it most of the time because 
there would only be snippets, but if some way could be found to have 
gavel to gavel so that it was not just a snippet, there may be some 
flexibility on his part.
  It is an item whose time has come because, institutionally, we ought 
to be doing something about it in the Senate. Institutionally, we have 
the responsibility to confirm. We aren't doing a very good job of 
finding out what a reasonable understanding is of where these nominees 
are heading. While we are fiddling, our institutional power is burning. 
If we lose much more of it, what we legislate to will not amount to a 
tinker's dam when the Supreme Court disagrees with our factual findings 
no matter how voluminous and solid they may be. What power is left is 
going to gravitate down Pennsylvania Avenue to the White House. So it 
is time to sit up and take notice.
  Ms. Kagan quoted me in her 1995 Law Review article, saying that I 
said one day the Senate is going to have to stand up on its rear legs 
and reject a nominee. Well, now is not the right day, in my opinion, 
for the reasons I have said.
  One other point I want to make. I would ask how much time I have 
remaining, but I think a more appropriate question would be how much 
time have I gone over?
  The PRESIDING OFFICER (Mr. Franken). The Senator has consumed his 
time.
  Mr. SPECTER. What is the answer to my question?
  The PRESIDING OFFICER. Seventeen minutes extra.
  Mr. SPECTER. Extra?
  The PRESIDING OFFICER. Yes.

[[Page S5937]]

  Mr. SPECTER. Mr. President, I ask unanimous consent for 4 more 
minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. Only one colleague is present. He is the congenial 
junior Senator from Florida. I thank my colleague.
  I want to make one more point. That is on the issue of the Supreme 
Court taking more cases. Here again, if there was transparency, America 
would be outraged at the workload on the Supreme Court, as the Court 
has moved from one clerk, to two clerks, to three clerks, to four 
clerks. And I do not begrudge them the time between the session ending 
in late June and the first Monday in October, where they travel and 
lecture and write books. But I am much concerned about the circuit 
splits.
  For anyone who may be watching on C-SPAN2--and I know my aunt and 
sister are watching--these cases are very important because if the 
Third Circuit, having Pennsylvania, New Jersey, and Delaware, decides a 
case one way and the Ninth Circuit, governing the Western States, 
decides it another way, and the case arises in Wichita, KS, nobody 
knows which precedent to follow because the circuits are autonomous.
  There are many important cases which the Supreme Court does not 
decide when there are circuit splits and they have time to decide them. 
They have time to decide the conflict between the Foreign Intelligence 
Surveillance Act and the Terrorist Surveillance Program. They have time 
to hear the case involving the 9/11 terrorist attacks and sovereign 
immunity.
  But these are the statistics which are very informative: In 1886, the 
Supreme Court decided 451 cases. In 1987, the Supreme Court wrote 146 
opinions. That was cut by less than half in 2006 to 68, in 2007 to 67, 
in 2008 to 75, 2009 to 73; this in the face of Chief Justice Roberts's 
testimony at his confirmation hearing that the Supreme Court ought to 
hear more cases. Ms. Kagan said about the same thing. My recollection 
is that Justice Sotomayor said about the same thing.
  So here, again, it is a matter of the public understanding it. We are 
very conscious in this body about not missing votes. When I miss votes, 
it appears in the Philadelphia Inquirer or the Pittsburgh Post-Gazette. 
The public does not like to see Arlen Specter missing votes. I am paid 
to vote.
  Well, you cannot vote on a case if you do not take a case. But having 
the discretion not to take the case just leaves this level of workload 
with circuit splits undecided, and this is something which ought to be 
handled.
  I have legislation pending to compel the Supreme Court to take, for 
example, the Terrorist Surveillance Program litigation. Most people do 
not know, but Congress cannot decide cases for the Court. The Congress 
can mandate what cases they take, as we did the flag burning case, as 
we did McCain-Feingold, and many other cases.
  So it is my hope that when we confirm Ms. Kagan--and it looks like we 
will confirm her--we will pause on the nomination proceedings and focus 
on their utility, if not to get substantive answers to see what 
intellectual dexterity the nominee has, but providing an opportunity to 
review what the Court is doing. We have to bone up on what happened 
since the last nomination proceeding. I think the record is open to 
substantial question. I think those questions could be answered for the 
reasons I have given, if we move ahead with television.
  Mr. President, in conclusion, I ask unanimous consent that a full 
copy of the text of my prepared statement be printed in the Record with 
these exact words so people will understand what I have said up until 
now is repeated to some extent in the formal written statement. Mr. 
President, I refer my colleagues to the two letters which I wrote to 
Chief Justice Roberts in anticipation of his nominating proceeding, 
three letters I wrote to Justice Alito, three letters I wrote to 
Justice Sotomayor, and three letters I wrote to Ms. Kagan. All have 
previously been printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Mr. President, I have sought recognition to speak on the 
     nomination of Solicitor General Elena Kagan to be an 
     Associate Justice of the Supreme Court of the United States. 
     General Kagan comes before us with an impressive background. 
     She received her bachelor's degree summa cum laude from 
     Princeton University, her master's degree through a 
     prestigious fellowship at Oxford University, and her law 
     degree magna cum laude from Harvard Law School. She was a 
     clerk for Judge Abner Mikva of the DC Circuit and for Supreme 
     Court Justice Thurgood Marshall. She practiced law at a top 
     private firm, Williams & Connolly, and served as special 
     counsel on the Senate Judiciary Committee. General Kagan was 
     an associate White House counsel to President Bill Clinton 
     and Deputy Assistant to the President for Domestic Policy and 
     Deputy Director of the Domestic Policy Council. General Kagan 
     has taught constitutional and administrative law as a tenured 
     professor at two of the country's best law schools, Harvard 
     and the University of Chicago. A breaker of glass ceilings, 
     General Kagan became the first female Dean of Harvard Law 
     School and the first female Solicitor General of the United 
     States, in which capacity she argued six cases before the 
     Supreme Court. Given these extraordinary credentials, it is 
     little surprise that the American Bar Association's Standing 
     Committee on the Federal Judiciary gave General Kagan a 
     unanimous ``well-qualified'' rating.
       One characteristic of General Kagan which, I think, is a 
     subtle but important trait is her sense of humor. She is a 
     real intellectual beyond any question. And I think that since 
     the Court is an ideological battleground, it is good to have 
     somebody there to go against the ideologues, like Justice 
     Scalia in particular. A sense of humor is, in my opinion, a 
     high level intellectual characteristic. General Kagan is very 
     good at humor. As I said in the hearing, that trait is very 
     much to her credit because it demonstrates that she's fast on 
     her feet and I suspect it will serve her well as she sits 
     with her colleagues at that intimate conference table and 
     casts her votes on cases of monumental import.
       In addition to her impressive resume and quick wit, General 
     Kagan brings with her a striking show of support from lawyers 
     representing all points on the ideological spectrum. The 
     outpouring of accolades from conservatives includes the 
     testimony of Professor Jack Goldsmith of Harvard Law School, 
     a respected scholar whose own views are much closer to those 
     of Justice Scalia than to those of General Kagan. Professor 
     Goldsmith, who served in the Bush Department of Justice and 
     Department of Defense, had this to say about Elena Kagan:
       Based on my experiences with Kagan, my reading of her 
     scholarly work, and my assessment of her very successful 
     legal career, I believe that she will be a truly outstanding 
     Supreme Court Justice. I urge this Committee to approve her 
     nomination and the entire Senate to confirm her.
       Professor Goldsmith also testified to General Kagan's deep 
     knowledge of the areas of law which arise often before the 
     Court. ``As an academic,'' he explained, ``Kagan taught and 
     was expert in constitutional law, administrative law, First 
     Amendment law, civil procedure, and labor law. These subjects 
     constitute a large chunk of the Supreme Court's docket . . . 
     Elena Kagan is immensely qualified to serve on the Supreme 
     Court. She should be easily confirmed.''
       Professor Goldsmith is not alone in his effusive praise for 
     General Kagan; many other conservatives have expressed strong 
     support for her confirmation. Miguel Estrada, a conservative 
     lawyer nominated to the D.C. Circuit by President Bush, wrote 
     in his letter of support that ``Elena possesses a formidable 
     intellect, an exemplary temperament and a rare ability to 
     disagree with others without being disagreeable . . . Elena 
     is an impeccably qualified nominee.''
       Professor Michael McConnell, a constitutional law expert at 
     Stanford and a former Bush-appointed federal appellate court 
     judge, also speaks highly of General Kagan. He writes,
       On a significant number of important and controversial 
     matters, Elena Kagan has taken positions associated with the 
     conservative side of the legal academy. This demonstrates an 
     openness to a diversity of ideas, as well as a lack of 
     partisanship, that bodes well for service on the Court . . . 
     Publicly and privately, in her scholarly work and her 
     arguments on behalf of the United States, Elena Kagan has 
     demonstrated a fidelity to legal principle even when it means 
     crossing her political and ideological allies.
       This perspective is shared by conservative legal scholar 
     and former Judiciary Committee aide to Senator John Cornyn, 
     Professor Brian Fitzpatrick of Vanderbilt Law School. 
     Professor Fitzpatrick, who was General Kagan's student in 
     administrative law at Harvard, wrote: ``The best those of us 
     on my side of the aisle can hope for at this time are Supreme 
     Court nominees who are thoughtful and open minded, with views 
     nearer the center than the poles. There is little doubt that 
     Elena fits this bill. In my experience, her ideas have been 
     more than reasonable, and she has always treated those who 
     may disagree with her with respect and understanding.''
       General Kagan has also received strong support from legal 
     scholars and practitioners with moderate or progressive 
     views. The depth of her bipartisan support is clear from a 
     letter written by eight former Solicitors General--five 
     Republicans, three Democrats. According to their letter, 
     Elena Kagan ``would bring to the Supreme Court a

[[Page S5938]]

     breadth of experience and a history of great accomplishment 
     in the law.'' Additionally, the former Chief Judge of the 
     D.C. Circuit and Carter appointee Patricia M. Wald wrote of 
     General Kagan,
       She is an extraordinarily smart lawyer with a practical 
     bent of mind. Her significant exposure as a law clerk and 
     Solicitor General to the way in which courts of appeal as 
     well as the Supreme Court operate, to the thrust and parry of 
     dueling theories in the academy and finally to the competing 
     demands at the highest level of government policymaking 
     provide a broad spectrum of experience on which she can draw 
     in the important post of Justice.
       The praises of Judge Wald, who served on the D.C. Circuit 
     while General Kagan worked there as a law clerk for Judge 
     Abner Mikva, are echoed by Kagan's colleagues from the world 
     of academia. The former Dean of Notre Dame Law School, 
     Professor Patricia A. O'Hara, wrote in her letter of support 
     that General Kagan ``possesses a powerful intellect . . . She 
     listens to the views of others, adds her own, exhibits 
     respect for differences of opinion, and cogently makes her 
     case.'' In addition, the deans of 56 law schools, including 
     the top schools in the nation, expounded on General Kagan's 
     personal attributes, intellectual prowess, and legal 
     experience, arguing for swift confirmation. They wrote,
       Elena Kagan excels along all relevant dimensions desired in 
     a Supreme Court Justice. Her knowledge of law and skills in 
     legal analysis are first rate. Her writings in constitutional 
     and administrative law are highly respected and widely cited. 
     She is an incisive and astute analyst of law, with a deep 
     understanding of both doctrine and policy. In terms of 
     intelligence as intellectual ability, she is superbly 
     qualified to sit on the United States Supreme Court . . . She 
     was a superb and successful dean, among other reasons, 
     because of her willingness to listen to diverse viewpoints 
     and give them all serious consideration.
       Prominent legal organizations also spoke out in favor of 
     General Kagan's nomination, including the American Bar 
     Association, the National District Attorneys Association, and 
     the National Association of Women Judges. The consensus among 
     these groups is that General Kagan is well-qualified for the 
     position of Supreme Court Justice. It should also be 
     mentioned that noted attorney and past President of the 
     American Bar Association Jerome Shestack wrote in favor of 
     General Kagan, saying that ``Our Court and nation will be 
     well served if Elena Kagan becomes a Justice of the Supreme 
     Court.''
       General Kagan's diversity of experience--in private 
     practice, in academia, in the executive branch, and in 
     Congress as an aide to the Judiciary Committee--has clearly 
     cultivated in General Kagan a deep and penetrating 
     understanding of the impact of law on people's lives. By 
     practicing, teaching, and studying the law from a broad array 
     of perspectives, Elena Kagan has prepared herself well for 
     the work of an Associate Justice of the Supreme Court.
       The Fourteenth Amendment (which prohibits states from 
     denying any person within their borders the equal protection 
     of the laws or depriving them of life, liberty, or property 
     with due process of law) and the Fifteenth Amendment (which 
     prohibits both the federal government and the states from 
     denying any citizen the right to vote ``on account of race'') 
     give Congress strong remedial power to enforce their 
     commands. It is critical that the Court not stand in the way 
     of its exercise. The enforcement of the amendments' 
     substantive provisions depends on whether private citizens 
     can enforce their rights against states in federal and state 
     courts. Whether they can depends, in turn, on whether 
     Congress can abrogate the states' Eleventh Amendment immunity 
     from suits by private parties. The Supreme Court has held 
     that Congress cannot abrogate Eleventh Amendment immunity 
     under its Article I powers (including its Commerce Clause 
     powers). Only through its remedial powers under the 
     Fourteenth and Fifteenth Amendments can Congress do so.
       Until 1997, the Court required no more of federal 
     legislation passed under the Fourteenth and Fifteenth 
     Amendments than that it satisfy a ``rational basis'' test. 
     That is same test that governs legislation enacted under 
     Congress's Article I powers, including its power to regulate 
     interstate commerce, as I noted during the hearing when I 
     cited Justice Harlan's 1968 Commerce-Clause decision in 
     Maryland v. Wirtz. As the Supreme Court explained in South 
     Carolina v. Katzenbach (1966), Congress could ``use any 
     rational means to effectuate the constitutional 
     prohibition[s]'' of the Fourteenth and Fifteenth Amendments. 
     A strong presumption of constitutionality attended the 
     rational basis standard. With one anomalous  exception, every 
     civil rights statute of the twentieth century tested in 
     the Court under this rational basis standard was upheld as 
     a permissible exercise of Congress's remedial authority.
       That all changed in 1997 with the Court's decision in City 
     of Boerne v. Flores. The Court there abandoned the rational-
     basis test and, citing no precedent, held that ``there must 
     be congruence and proportionality between the injury to be 
     prevented or remedied and the means adopted to that end.'' 
     This worked a sea change in the relationship between Congress 
     and the Court. As Justice Scalia observed in Tennessee v. 
     Lane (2004), the ``congruence and proportionality standard, 
     like all flabby legal tests, is a standing invitation to 
     judicial arbitrariness and policy-driven decisionmaking. . . 
     . [I]t casts . . . [the Supreme] Court in the role of 
     Congress's taskmaster. Under it, the courts . . . must 
     regularly check Congress's homework to make sure that it has 
     identified sufficient constitutional violations to make its 
     remedy congruent and proportional.''
       Wielding the congruence-and proportionality test, the Court 
     has, again in Justice Scalia's words, come into ``constant 
     conflict'' with Congress. It has, among other things, struck 
     down the provision of the Age Discrimination in Employment 
     Act that prohibits age discrimination in employment by states 
     (Kimel v. Florida Board of Regents (2000)), the provision of 
     the Americans with Disabilities Act prohibiting states from 
     discriminating against disabled persons in employment (Board 
     of Trustees of the University of Alabama v. Garrett (2001)), 
     and the provisions of the Violence Against Women Act that 
     created a federal civil remedy for the victims of gender-
     based crimes against private parties (United States v. 
     Morrison (2000)). In Morrison, the Court refused even to 
     sustain the challenged provisions on the alternative ground 
     that Congress could prohibit gender-based crimes under its 
     Article I authority--long considered to admit of few, if any, 
     justiciable limitations--to regulate interstate commerce. 
     This was just the second time since the New-Deal era that the 
     Court struck down a federal statute on the ground that 
     Congress exceeded its Article I power to regulate commerce.
       Of the few federal statutes that survived Constitutional 
     muster under the congruence-and-proportionality test, most 
     survived by only slim margins. Chief among them were the 
     provisions of the Family and Medical Leave Act (FMLA) 
     governing state employment practices challenged in Nevada 
     Department of Human Resources v. Hibbs (2003). There was no 
     principled basis to uphold the FMLA in Hibbs but not, say, 
     the ADA in Garrett. The Court's post-Boerne cases illustrate, 
     as Justice Scalia has noted, that the congruence-and-
     proportionality test often allows the Supreme Court to go any 
     which way and the Justices to indulge their own personal 
     policy preferences.
       Most significantly, in applying the congruence and 
     proportionality test (and, in Morrison, in evaluating the 
     challenge statute's constitutionality under the Commerce 
     Clause), the Court has cast aside legislative findings 
     justifying remedial legislation as it has never before done. 
     Each of the cases striking down federal civil rights 
     legislation--including Kimel, Garrett, and Morrison--involved 
     extensive Congressional factual findings justifying the 
     legislation. The Court even went out of its way in Morrison 
     to disparage the ``method of reasoning'' that underlay 
     Congress's unassailable finding that gender-based crimes have 
     a substantial effect on interstate commerce. This prompted 
     Justice Souter, in a dissent joined by three other justices, 
     to decry the Court's long-standing practice of assessing no 
     more than the ``rationality of Congressional conclusions.'' 
     Justice Souter's criticism reflects the once-dominant view 
     that, in Laurence Tribe's words, only ``Congress has the 
     institutional competence,'' including the fact-finding 
     capabilities, to evaluate what practices threaten the 
     Fourteenth Amendment's guarantees.
       General Kagan, it seems to me, acknowledged the crazy quilt 
     of decisions in cases where the Court was reviewing statutes 
     enacted through Congress's remedial authority under Section 5 
     of the Fourteenth Amendment. Though she did not prejudge the 
     congruence-and-proportionality test by affirmatively labeling 
     it ``unworkable,'' she did go pretty far in repeating 
     criticisms of the test and in acknowledging that its 
     application is unfair to Congress.
       While General Kagan was not as forthcoming as she ought to 
     have been, or as forthcoming as her law review article stated 
     nominees should be, she did do a better job of answering 
     questions than most nominees have done.
       When I criticized Chief Justice Rehnquist's denigration of 
     Congress's ``method of reasoning'' in Morrison and asked ``do 
     you think there is some unique endowment when nominees leave 
     this room and walk across the street to have a method of 
     reasoning which is superior to [the] congressional method of 
     reasoning so that a court can disregard voluminous records 
     because of our method of reasoning?'' General Kagan replied, 
     ``Well, to the contrary . . . I think it's extremely 
     important for judges to realize that there is a kind of 
     reasoning and a kind of development of factual material more 
     particularly that goes on in Congress.'' She continued, ``I 
     think it is very important for the courts to defer to 
     congressional fact finding, understanding that the courts 
     have no ability to do fact finding, are not, would not 
     legitimately, could not legitimately do fact finding.'' 
     Furthermore, General Kagan said, ``I have enormous respect 
     for the legislative process. Part of that respect comes from 
     working in the White House and working with Congress on a 
     great many pieces of legislation.''
       After contrasting Justice Harlan's test in Wirtz with the 
     congruence-and-proportionality test that Justice Scalia 
     criticized in Lane, I asked General Kagan, ``would you take 
     Harlan's test as opposed to the congruence and 
     proportionality test'' and she replied, ``Justice Scalia is 
     not the only person who has been critical of the test. A 
     number of people have noted that the test which is of course 
     a test relating to Congress' power to legislate under Section 
     5 of the Fourteenth

[[Page S5939]]

     Amendment, that the test has led to some apparently 
     inconsistent results in different cases.'' I followed up 
     stating, ``What I want to know from you is whether you think 
     that is an appropriate standard to replace the rational basis 
     test of Wirtz?'' General Kagan responded, ``Now . . . there 
     are times when the Court decides that a precedent is 
     unworkable. It just, it produces a set of chaotic results.'' 
     When I asked whether the congruence-and-proportionality test 
     was unworkable General Kagan testified, ``I think that the 
     question going forward, and it is a question, I'm not stating 
     any conclusion on it, but I think that something that Justice 
     Scalia and others are thinking about is whether the congruent 
     and proportionality test is workable or whether it produces 
     such chaotic results . . . .'' General Kagan further 
     testified that she knew ``that Congress needs very clear 
     guidance in this area. It is not fair to Congress to keep 
     moving the goal posts. It is not fair to say oh well, you 
     know, if you do this this time it will be okay but if you do 
     that the next time it won't.''
       While General Kagan refused to say whether, if confirmed, 
     she would apply the congruence-and-proportionality standard 
     to test the constitutionality of remedial legislation enacted 
     under the Fourteenth Amendment, she did at least express 
     serious reservations about that standard. She noted that the 
     standard had been subject to ``significant criticism'' and, 
     more importantly, that ``it's produced some extremely erratic 
     results.'' She added: ``There seems to me real force in the 
     notion that a test in this area dealing with Congress' 
     section 5 powers [under the Fourteenth Amendment] really 
     needs to provide clear guideposts to Congress so that 
     Congress knows what it can do and know what it can't do. And 
     so the goal posts don't keep changing and so . . . Congress 
     can . . . pass legislation confident in the knowledge that 
     legislation will be valid. And I think those concerns are of 
     very significant weight.'' None of General Kagan's 
     predecessors (Justice Sotomayor, Justice Alito, and Chief 
     Justice Roberts)--all of whom I questioned about Congress's 
     Fourteenth-Amendment powers--was as forthcoming. General 
     Kagan also said that Congressional fact findings are entitled 
     to ``great deference.''
       When I later returned to the question of whether Justice 
     Kagan would apply a rational basis test or a congruence-and-
     proportionality test when reviewing congressional facts 
     General Kagan replied, ``as I understand it, the congruence 
     and proportionality test is currently the law of the [C]ourt, 
     and notwithstanding that, its been subjected to significant 
     criticism and notwithstanding that its produced some 
     extremely erratic results. And I can't . . . sit at this 
     table without briefing, without argument, without discussion 
     with my colleagues and say, well, I just don't approve of 
     that test, I would reverse it.''
       When I cited Justice Stevens' dissent in Citizens United 
     and asked General Kagan ``what deference [she] would show to 
     congressional fact finding'' she replied, ``the answer to 
     that is great deference to congressional fact finding.'' When 
     I asked General Kagan if there was ``any way you could look 
     at Citizens United other than it being a tremendous jolt to 
     the system'' she replied, ``this is one that as an advocate, 
     I have taken a strong view on which is that it was a jolt to 
     the system. There was a great deal of [reliance] interests 
     involved and many states had passed pieces of legislation in 
     reliance upon Austin that Congress had passed legislation 
     after accumulating a voluminous record.''
       I also asked General Kagan about cases regarding Sovereign 
     Immunity and Federal Court Jurisdiction. One of the two cases 
     involving the jurisdiction of the federal courts was Weiss v. 
     Assicurazioni Generali, S.P.A., 529 F.3d 113 (2d Cir. 2010). 
     It was brought by victims of the Holocaust and their heirs to 
     recover on unpaid World War II-era insurance policies 
     issued by an Italian insurance company. Just a few months 
     ago, the United States Court of Appeals for the Second 
     Circuit affirmed the dismissal of the plaintiffs' claims 
     on the ground that they were preempted by an Executive-
     branch foreign policy favoring the resolution of such 
     claims through an international commission. The Second 
     Circuit did so in reliance on the Supreme Court's 2003 
     decision in American Insurance Association v. Garamendi. 
     There the Court held that this policy, though not 
     formalized in an executive agreement (let alone a Senate-
     ratified treaty), preempted a state law requiring insurers 
     to disclose information about certain Holocaust-era 
     insurance policies. Among the important questions 
     presented by Generali is whether the executive branch can 
     shut the courthouse doors on litigants in the absence of 
     Congressional authorization. I asked General Kagan 
     whether, if confirmed, she would vote to grant cert. in 
     the Holocaust case and she replied, ``this is difficult 
     for me because, as I understand this, this is a live case 
     and I continue to represent one of the parties in this 
     case. In other words, there may very well be a petition 
     for certiorari in this case, but I continue to be 
     Solicitor General and--and would head the office that 
     would have to respond to a petition.''
       The other case involving the jurisdiction of the federal 
     court was In re Terrorist Attacks on September 11, 2001, 538 
     F.3d 113 (2d Cir. 2009). This litigation was brought by over 
     6,000 victims of the September 11 terrorist attacks against, 
     among other defendants, the Kingdom of Saudi Arabia and five 
     Saudi princes. The plaintiffs asserted various claims arising 
     from their allegation that Saudi Arabia financed the attacks. 
     The United States Court of Appeals for the Second Circuit 
     ruled that Saudi Arabia was immune from suit under the 
     Foreign Sovereign Immunities Act (FSIA). In a brief filed on 
     behalf of the United States, Solicitor General Kagan urged 
     the Court not to hear the case even though she conceded that 
     the Second Circuit had effectively nullified the key 
     statutory exception to sovereign immunity on which the 
     plaintiffs had relied. I raised the case at Solicitor General 
     Kagan's confirmation hearing because of the key objective 
     underlying the FSIA: to take sovereign immunity 
     determinations away from the executive branch (which until 
     enactment of the FSIA had made discretionary immunity 
     determinations on case-by-case basis) and vest them the 
     courts (which would make immunity determinations according to 
     the FSIA's objective, non-discretionary statutory criteria). 
     I asked General Kagan, ``As a justice, would you vote to take 
     that kind of case?'' General Kagan responded, ``the 
     government did argue, based on very extensive consultations, 
     that the Supreme Court ought not to take that case, and that 
     continues to be the government's position. You know, I don't 
     think it would be right for me to undermine the position that 
     we took in that way by suggesting it was wrong.''
       Another case I raised with Solicitor General Kagan 
     concerned the constitutionality of the Bush Administration's 
     secretive Terrorist Surveillance Program (TSP). The TSP 
     brought into sharp conflict Congress's authority under 
     Article I to establish the `exclusive means' for wiretaps 
     under the Foreign Intelligence Surveillance Act with the 
     President's authority under Article II as Commander-in-Chief 
     to order warrantless wiretaps. The TSP operated secretly from 
     shortly after September 11, 2001, until December 2005, when 
     The New York Times exposed the existence of the program. In 
     August 2006, the United States District Court for the Eastern 
     District of Michigan found the program to be 
     unconstitutional. In July 2007, the Sixth Circuit reversed on 
     the ground that the plaintiffs lacked standing to sue. One 
     judge on the three-judge panel , Judge Gilman, dissented. 
     Judge Gilman noted that ``the attorney-plaintiffs in the 
     present case allege that the government is listening in on 
     private person-to-person communications that are not open to 
     the public. . . . [T]he attorney-plaintiffs have thus 
     identified concrete harms to themselves flowing from their 
     reasonable fear that the TSP will intercept privileged 
     communications between themselves and their clients.'' The 
     Supreme Court denied certiorari without explanation. I asked 
     her about the Court's reticence to take up the Sixth 
     Circuit's decision in the Terrorist Surveillance Program 
     (TSP) case and General Kagan testified, in part, ``In a case 
     where the executive branch is determined or is alleged, 
     excuse me, is alleged to be violating some congressional 
     command, it is I think one of the kinds of cases that the 
     [C]ourt typically should take.'' She called this a third 
     specie of case, aside from circuit splits and those that 
     strike down statutes on constitutional grounds, where there 
     ``is an issue of some vital national importance.''
       I later asked her ``would you vote to take that kind of 
     case?'' General Kagan responded, in pertinent part, ``Well . 
     . . I do think that this is a case that, as I understand it, 
     generally falls within the third category of case, a case 
     which presents an extremely important Federal issue as to 
     whether the executive has overstepped its appropriate 
     authority and has essentially flouted legislation in the 
     area.''
       When I referenced the Court's declining docket and the need 
     to resolve more circuit splits of authority, General Kagan 
     responded, ``I do generally agree with that. I clerked on the 
     [C]ourt in 1987 which was pretty much at the high point of 
     what the [C]ourt was doing, about 140 cases a year.'' She 
     went on to testify, ``I do agree with you that there do seem 
     to be many circuit conflicts and other matters of vital 
     national significance.''
       Although General Kagan failed, in many instances, to adhere 
     to her own standard of providing forthcoming and detailed 
     answers during her confirmation hearing, there is much that 
     we can glean from her record prior to her nomination. Since 
     nominees have a vested interest in saying whatever will get 
     them confirmed, and since past nominees have not always 
     decided cases in line with their testimony at nomination 
     hearings, in many ways a nominee's prehearing record is 
     more reliable than her confirmation hearing testimony.
       While General Kagan refused to say whether, if confirmed, 
     she would apply the congruence-and-proportionality standard 
     to test the constitutionality of remedial legislation enacted 
     under the Fourteenth Amendment her pre-hearing record on the 
     issue, though limited, strongly suggests that she shares my 
     concerns about the denigration of Congressional power. I 
     refer to her notes of two (un-transcribed) speeches she gave 
     in 2003 (one to Princeton alumni) the other to an audience at 
     the University of Minnesota Law School). The notes suggest 
     that, contrary to the position taken by Justices Kennedy, 
     Scalia, and Thomas, as well as former Chief Justice Rehnquist 
     and Justice O'Connor, General Kagan believes that the Court 
     should give Congress substantial deference, especially when 
     legislating under its Fourteenth Amendment authority. In a 
     May 21,

[[Page S5940]]

     2010, article, The Wall Street Journal characterized General 
     Kagan's views as expressed in one of the speeches as follows: 
     ``The piece, in short, seems to suggest that in at least one 
     key area, she would be an arbiter of judicial restraint, 
     prone to giving considerable deference to Congress. . . . 
     [S]he says [that] courts should defer to Congress when the 
     framer of the Constitution clearly authorized legislators to 
     exercise power. Such a clear authorization, she says, can be 
     found in section 5 of the 14th Amendment. . . . So, Kagan 
     concludes, courts should defer to Congress when it takes 
     actions to effectuate 14th Amendment rights.'' As I said 
     during my June 7, 2010, floor statement on the confirmation 
     process, the Senate should put considerable weight on such 
     pre-hearing statements reflecting a nominee's legal ideology.
       It is also clear that General Kagan is a strong and 
     principled supporter of civil rights. As Harvard Professor 
     Ronald Sullivan pointed out in his testimony before the 
     Committee, a telling story about General Kagan is that she 
     turned down the Royall Professorship of Law, Harvard Law 
     School's first endowed chair, because the fortune that 
     endowed the chair was derived from the slave trade. Instead, 
     then-Dean Kagan decided to become the first Charles Hamilton 
     Houston Professor of Law, a chair named in honor of one of 
     Harvard Law's most accomplished African-American graduates 
     and, as an architect of the civil rights movement's legal 
     strategy, an historic figure in his own right.
       Elena Kagan's support for civil rights extends far beyond 
     symbolism, however. In an email from her time at the Clinton 
     White House, General Kagan wrote that she ``care[s] about 
     [affirmative action] a lot,'' which she demonstrated through 
     her work on the issue. For example, in a brief to then-
     Solicitor General Walter Dellinger strategizing how to 
     ``avoid a broad and harmful ruling invalidating non-remedial 
     affirmative action in employment,'' General Kagan argued in 
     favor of pursuing a narrow judgment which would preserve 
     affirmative action policies. She wrote, ``I think this is 
     exactly the right position--as a legal matter, as a policy 
     matter, and as a political matter.'' This echoes her comments 
     to Justice Thurgood Marshall in a memo urging denial of 
     certiorari on a case involving a school desegregation plan 
     which had been upheld at the circuit court level. In her 
     memo, Kagan described the plan as ``amazingly sensible,'' 
     even though it was not implemented in response to historic 
     state-sponsored school segregation in that particular 
     district. It is clear to me from these memos and from her 
     comments that when it comes to civil rights, General Kagan 
     supports strong protections for racial minorities and 
     believes in expanding opportunities for historically 
     disadvantaged groups. If General Kagan were seated on the 
     Court, cases like Parents Involved in Community Schools v. 
     Seattle School District No. 1 may have been decided 
     differently.
       Additionally, General Kagan's record reveals strong support 
     for ensuring fair and clean elections through campaign 
     finance regulation. Long before she urged the Court in 
     Citizens United v. FEC to uphold the federal ban on 
     independent campaign expenditures by corporations, Elena 
     Kagan assisted the development of the McCain-Feingold Act 
     during her time in the White House. In one of her memos from 
     that time, she argued vigorously for President Clinton to 
     support campaign finance reform and criticized the Court for 
     its ``mistaken'' conclusion ``that money is speech and that 
     attempts to limit the influence of money on our political 
     system therefore raise First Amendment problems.'' She argued 
     not only that the Court should uphold campaign finance 
     regulation on the basis of the compelling government interest 
     in preventing corruption or the appearance of corruption, she 
     also argued that the Court should reexamine the basis for its 
     rejection of expenditure regulations beginning with Buckley 
     v. Valeo in 1976. Although she may have made some of these 
     arguments in her capacity as a policy advisor and advocate 
     for the President's agenda, these memos provide insight into 
     General Kagan's views of campaign finance reform--views which 
     appear to be positive in terms of both personal preference 
     and legal analysis.
       General Kagan's time as a senior aide to President Clinton 
     also shows that she has respect for Congress, respect born of 
     personal experience and legal reasoning. Although some from 
     my party have expressed concern that General Kagan has too 
     broad a view of executive power, her writings indicate 
     otherwise. She has clearly and unequivocally rejected the 
     Unitary Executive theory, which posits the President 
     possesses plenary authority over all federal agencies 
     involved in administering federal law and that Congress had 
     been granted too much power relative to the executive. In her 
     famous 2001 Harvard Law Review article, Presidential 
     Administration, she wrote, ``I do not espouse the Unitarian 
     position . . . the constitutional values sometimes offered in 
     defense of this claim are too diffuse, too diverse, and for 
     these reasons, too easily manipulable'' to support exclusive 
     presidential control over the administration of federal law 
     through agencies. Additionally, then-Dean Kagan criticized 
     the expansive views of executive authority in the so-called 
     torture memos of the Bush administration, which she described 
     in a 2007 commencement address as ``expedient and 
     unsupported.'' General Kagan also criticized expanding 
     executive power to the detriment of Congressional prerogative 
     when she wrote in a 1996 White House memo on a pending 
     decision on whether or not the Solicitor General would defend 
     two particular statutes. She wrote:
       What difference does it really make whether Congress 
     explicitly directs the executive branch to take action 
     against private persons (via separation) or implicitly 
     directs the executive branch to take such action (via 
     prosecution)? In either case, refusal to comply with the 
     directive violates congressional will.
       In light of these writings, it seems not only General 
     Kagan's personal opinion but also her legal opinion that 
     Congress has a powerful role to play vis-a-vis the executive 
     and the courts. Finally, General Kagan's experience working 
     with Congress and on the Senate Judiciary Committee also 
     increases my confidence in her understanding and respect for 
     this institution as the first branch of American government.
       General Kagan has been clear and straightforward on the 
     issue of making the Supreme Court more accessible and more 
     accountable by televising its proceedings for the public. In 
     her 2009 speech before the Ninth Circuit Judicial Conference, 
     she expressed support for televising the Court. When I met 
     with General Kagan in my office, she continued to be 
     forthcoming about her support for broadcasting the Court's 
     proceedings, which I appreciated. I asked General Kagan 
     ``Wouldn't televising the [C]ourt and information as to what 
     the [C]ourt does have an impact on the values which are 
     reflected in the American people'' and she replied, ``I do 
     think . . . it would be a good thing from many perspectives 
     and I would hope to if I am fortunate enough to be confirmed 
     to engage with the other Supreme Court Justices about that 
     question. I think it is always a good thing when people 
     understand more about government rather than less and 
     certainly the Supreme Court is an important institution and 
     one that the American citizenry has every right to know about 
     and understand. I also think that it would be a good thing 
     for the [C]ourt itself that that greater understanding of the 
     [C]ourt I think would go down to its own advantage. So I 
     think from all perspectives, televising would be a good 
     idea.''
       I have introduced both a resolution expressing the sense of 
     the Senate that Supreme Court proceedings should be 
     televised, as well as a bill to require the Court to allow 
     the television broadcast of its open proceedings, except in 
     some special circumstances. The Judiciary Committee passed 
     both the resolution and the bill on April 29, 2010, by an 
     overwhelming vote of 13 to 6. With the retirement, last year, 
     of Justice Souter, the strongest opponent of televising the 
     Court's proceedings, and the potential addition of General 
     Kagan, there is a good chance that the Court will finally be 
     accessible to all Americans, as it should be. If the Court 
     does not allow cameras in of its own volition, I will 
     continue to press for passage of my legislation before the 
     end of the year.
       Regardless of personal political persuasion, there is near 
     consensus among Senators that a nominee should be able to 
     unmoor herself from political and policy views when deciding 
     a case in our nation's highest court. In her 25 years of 
     experience in the law, General Kagan has consistently 
     demonstrated fairness, humility, moderation, and adherence to 
     duty--the exact attributes we all seek in a Justice of the 
     Supreme Court of the United States.
       In my first autobiography, Passion for Truth, I wrote:
       Chief Justice William Rehnquist, at his 1986 confirmation 
     hearing, would not answer basic constitutional questions. 
     Rehnquist, an associate justice since 1971, didn't believe he 
     should have to go before the Senate a second time for 
     promotion to chief, according to Tom Korologos, a premier 
     Washington lobbyist.  . . . Rehnquist cited Korologos the 
     case of former Senator Sherman Minton, whom President Truman 
     nominated to the Supreme Court and who refused to go before 
     the Senate for a hearing. Minton argued that the legislative 
     branch had no right to question a nominee. The Senate 
     confirmed Minton without a hearing. ``What do you think of 
     that?'' Rehnquist asked Korologos. ``Why do I have to 
     testify?'' he demanded. Rehnquist's record was there; his 
     opinions were public. He would not expand on them or defend 
     them. Rehnquist insisted Korologos try to get him through 
     without a hearing. ``I said, `Fine, Bill,' and dismissed it 
     out of hand,'' Korologos recalled. . . . ``What am I going to 
     do, tell the leadership we're not going to have a hearing on 
     Rehnquist? Anyway, it died before it got off the ground.'' 
     [Korologos continued]. Rehnquist relented and agreed to go 
     before the Senate.
       I further observed that ``Chief Justice Rehnquist answered 
     barely enough questions to get my vote. In all, sixty-five 
     senators supported him, but thirty-three others voted against 
     his nomination.'' Turning to Judge Robert Bork's nomination 
     in July 1987, I noted that Democrats controlled the Senate 
     and Senator Kennedy was a strong opponent of the nomination. 
     ``Considering the context and controversy, Bork concluded--
     correctly, I think--that he would have to answer questions on 
     judicial philosophy to have a chance at confirmation.'' 
     Perhaps General Kagan concluded--again correctly--that with a 
     Democratic Senate and little controversial published work of 
     her own, she would be confirmed without betraying many of her 
     substantive views. I regret that she chose that course but it 
     is a course many before her have chosen and it is a course 
     that the Senate has permitted.

[[Page S5941]]

       When I was questioning Rehnquist he refused to answer my 
     question about stripping the federal courts' jurisdiction. He 
     deflected my question, stating ``I feel I cannot go to any 
     further than that, for fear that that sort of issue will come 
     before the Court.'' When I pressed him, Rehnquist insisted, 
     ``I honestly feel I must adhere to my view that it would be 
     improper for a sitting justice to try to advance an answer to 
     that question.''
       I describe in my book that during an overnight recess, when 
     the hearing continued, a staffer brought me an article from 
     the Harvard Law Record that Rehnquist had written in 1959, 
     when he was a practicing lawyer. The article criticized 
     Charles Whittaker's nomination to the Supreme Court because 
     Whittaker had essentially told the Senate only that he was 
     the son of two states, that he had been born in Missouri and 
     practiced law in Kansas. Much like General Kagan in her 1995 
     law review article, Rehnquist, in his Harvard article, 
     expressed outrage that the Senate had endorsed Whittaker 
     without asking him any substantive questions, writing that 
     ``Until the Senate restores its practice of thoroughly 
     informing itself on the judicial philosophy of a Supreme 
     Court nominee before voting to confirm him, it will have a 
     hard time convincing doubters that it could make effective 
     use of any additional part in the selection process.'' The 
     next day I confronted Justice Rehnquist with his article and 
     his own words twenty-seven years later. Rehnquist responded 
     ``I don't think I appreciated, at the time I wrote that, the 
     difficult position the nominee is in.''
       Following that admission, I pressed Rehnquist on 
     jurisdiction and he finally answered that Congress cannot 
     take away jurisdiction from the Supreme Court on the First 
     Amendment. He refused, however, to answer questions regarding 
     the Fourth Amendment (search and seizure), the Fifth 
     Amendment (privilege against self-incrimination), the Sixth 
     Amendment, the Eighth Amendment (cruel and unusual 
     punishment), or even his reasoning for answering a question 
     regarding the first amendment but not the others.
       While I do not condone General Kagan's change of view on 
     how much a nominee should answer, she is not the first 
     nominee to criticize the Senate for not insisting on 
     substantive answers and then later change her mind when she 
     is a Supreme Court nominee. We confirmed Chief Justice 
     Rehnquist after he disclaimed his statements in the Harvard 
     article, so there is no reason, at this point, not to do the 
     same for General Kagan.
       I have never asked that a nominee satisfy an ideological 
     litmus test--whether liberal or conservative--much less that 
     a nominee commit to reaching a particular certain outcome in 
     any given case. What I have asked is that a nominee, first, 
     affirm his or her commitment to the doctrine of stare 
     decisis; and, second, to honor the legislative powers the 
     Constitution assigns to the Congress, especially its remedial 
     powers to enforce the Fourteenth and Fifteenth Amendments.
       Nominees committed to stare decisis and respectful of 
     Congress's lawmaking powers are much less likely to indulge 
     their ideological preferences--whether left or right--in 
     interpreting the open-ended provisions of the Constitution 
     and federal statutes to which very different meanings could 
     be ascribed. They are, in short, less likely to become 
     activists. Noted Court commentator Jeffrey Rosen made just 
     that point soon before the Roberts confirmation hearing. He 
     said that the ``best way'' to find out whether Chief Justice 
     Roberts was a conservative activist (in the mold of Justice 
     Scalia and Thomas) or a moderate, cautious, and restrained 
     conservative (in the mold of Justice O'Connor) would be ``to 
     explore Judge Roberts's view of precedents, which the lawyers 
     call stare decisis, or `let the decision stand.' '' (``In 
     Search of John Roberts,'' The New York Times, July 21, 2005.)
       That is why when I questioned Roberts and Alito in 2005 and 
     2006, respectively, I focused heavily on the issue of stare 
     decisis. Several other Senators did as well. Both Chief 
     Justice Roberts and Justice Alito provided extensive 
     testimony on the subject. Their testimony warrants extensive 
     quotation.
       Chief Justice Roberts testified:
       ``Judges are like umpires. Umpires don't make the rules, 
     they apply them. The role of an umpire and a judge is 
     critical. They make sure everybody plays by the rules, but it 
     is a limited role. Nobody ever went to a ball game to see the 
     umpire. Judges have to have the humility to recognize that 
     they operate within a system of precedent shaped by other 
     judges equally striving to live up to the judicial oath . . . 
     .''
        ``[T]he importance of settled expectations in the 
     application of stare decisis is a very important 
     consideration.''
       ``I do think that it is a jolt to the legal system when you 
     overrule a precedent. Precedent plays an important role in 
     promoting stability and evenhandedness. It is not enough--and 
     the Court has emphasized this on several occasions. It is not 
     enough that you may think the prior decision was wrongly 
     decided.''
       ``Well, I think people's personal views on this issue 
     derive from a number of sources, and there's nothing in my 
     personal views based on faith or other sources that would 
     prevent me from applying the precedents of the Court 
     faithfully under principles of stare decisis.''
       ``I think one way to look at it is that the Casey decision 
     [Casey v. Planned Parenthood of Southeastern Pennsylvania 
     (1992)] itself, which applied the principles of stare decisis 
     to Roe v. Wade [1973], is itself a precedent of the Court, 
     entitled to respect under principles of stare decisis. And 
     that would be the body of law that any judge confronting an 
     issue in his care would begin with, not simply the decision 
     in Roe v. Wade but its reaffirmation in the Casey decision. 
     That is itself a precedent. It's a precedent on whether or 
     not to revisit the Roe v. Wade precedent. And under 
     principles of stare decisis, that would be where any judge 
     considering the issue in this area would begin.''
       Testifying a year later, Justice Alito was no less 
     emphatic. He testified:
       ``I think the doctrine of stare decisis is a very important 
     doctrine. It's a fundamental part of our legal system, and 
     it's the principle that courts in general should follow their 
     past precedents, and it's important for a variety of reasons. 
     It's important because it limits the power of the judiciary. 
     It's important because it protects reliance interests, and 
     it's important because it reflects the view of the courts 
     should respect the judgments and the wisdom that are embodied 
     in prior judicial decisions. It's not an inexorable command, 
     but it's a general presumption that courts are going to 
     follow prior precedents.''
       ``I agree that in every case in which there is a prior 
     precedent, the first issue is the issue of stare decisis, and 
     the presumption is that the Court will follow its prior 
     precedents. There needs to be a special justification for 
     overruling a prior precedent.''
       ``I don't want to leave the impression that stare decisis 
     is an inexorable command because the Supreme Court has said 
     that it is not, but it is a judgment that has to be based, 
     taking into account all of the factors that are relevant and 
     that are set out in the Supreme Court's cases.''
       Again, without challenging their good faith, I note the 
     contrast between the testimony cited at length above, from 
     both Chief Justice Roberts and Justice Alito, with their 
     concurring opinion in Citizens United. That concurrence, 
     authored by Roberts and joined by Alito, says, ``The Court's 
     unwillingness to overturn Austin in [subsequent] cases cannot 
     be understood as a reaffirmation of that decision.'' 
     (emphasis in original). It seems to me that Chief Justice 
     Roberts's concurrence flies in the face of what he said about 
     Casey reaffirming the central holding in Roe. Contrary to his 
     testimony that ``It is not enough that you may think the 
     prior decision was wrongly decided[,]'' Roberts went on to 
     write in Citizens United, ``[w]hen considering whether to 
     reexamine a prior erroneous holding, we must balance the 
     importance of having constitutional questions decided against 
     the importance of having them decided right.'' (emphasis in 
     original). That is an about face.
       In announcing my ``aye'' vote for General Kagan's 
     nomination to the Supreme Court, I have attempted to sound a 
     cautionary note. The point is to remind Senators, in the 
     first instance, of the need to jealously guard against 
     incursions from the other branches. It is also, I submit, to 
     remind the nominee and the sitting Justices of the Supreme 
     Court that Congress is a coequal branch of Government 
     deserving of a modicum of respect. It takes at least fifty-
     one votes in the Senate (some would say sixty) and at least 
     two-hundred and eighteen votes in the House to present 
     legislation to the President for his signature. Getting from 
     the introduction of any legislative measure to enacting a new 
     law is a Herculean task. When that task is augmented by a 
     lengthy congressional record supported by hearings and 
     reasoned testimony it should not be cast aside. So it has 
     been important for this Senator to underscore a healthy 
     respect for Congress in the course of Supreme Court 
     confirmation proceedings.
       Of the 13 nominees to have come before the Judiciary 
     Committee for a hearing during my tenure in the Senate, none 
     was less forthcoming than Justice Scalia. He answered no 
     substantive questions at all. He would not even say whether 
     Marbury v. Madison, which established the principle of 
     judicial review, was correctly decided.
       In my first autobiography, Passion for Truth, I wrote that 
     ``From my experience participating in Supreme Court 
     nomination hearings, I have found that the better the nominee 
     thinks his chances are, the less he will say at the hearing 
     to minimize his risk.'' In short, Justice Scalia was 
     confident he would be confirmed and, therefore, less 
     forthcoming on substantive inquiries. Justice Scalia's 
     testimony prompted Senator DeConcini to remark: ``It is 
     apparent to me that nominees are advised by the 
     administration to be as evasive and passive as they can be.''
       Since General Kagan has only followed the precedent set by 
     previous nominees and by the Senate, I believe that she 
     should be confirmed based on her record. In evaluating Ms. 
     Kagan's overall record and performance before the committee, 
     I have concluded that her intellect, academic 
     accomplishments, professional qualifications and earlier 
     statements expressing great respect for Congress outweigh her 
     failure to give substantive answers. But it is worth 
     preserving for the record my views as to what she failed to 
     testify to during the course of the hearing. Several Senators 
     tried in vain to elicit meaningful answers from General 
     Kagan. Senator Kohl asked straightforward questions. When 
     Senator Kohl asked her about her passions,  she demurred, 
     discussing ``the rule of law'' instead. He asked again, 
     ``What are your passions?'' but General Kagan did not 
     answer. Senator Kohl asked how she would impact

[[Page S5942]]

     the everyday lives of Americans. Again, General Kagan did 
     not answer. She referred back to her previous three 
     responses, where she discussed just taking ``one case at a 
     time,'' and nothing more. Senator Kohl tried asking 
     ``Which cases will motivate you?'' and again General Kagan 
     refused to answer, and instead simply recited facts we 
     already knew about the certiorari process. When asked by 
     Senator Kohl about her views on the Bush v. Gore case, a 
     case that the Court specifically said was unique and would 
     not hold precedential value, General Kagan refused to 
     answer, stating that she could not answer because the 
     ``question of when the court should get involved in 
     election contests . . . might well come before the court 
     again.''
       Similarly, when asked by Senator Coburn if a law requiring 
     Americans to eat three vegetables and three fruits every day 
     would be unconstitutional, certainly not a case likely to 
     come before the Court, she refused to answer even that 
     question in a substantive manner.
       After pressing General Kagan on her views of the Second 
     Amendment several times without making any progress, Senator 
     Grassley resigned himself to the fact that, in his words, she 
     ``[didn't] want to tell us what [her] own personal belief 
     is.''
       Senator Coburn criticized General Kagan for ``dancing'' 
     around instead of answering questions and suggested that 
     ``Maybe [she] should be on `Dancing with the Stars'.''
       When General Kagan refused to discuss internal Justice 
     Department deliberations with White House staff regarding 
     upcoming cases, Senator Kyl pointed out that ``simply noting 
     whether or not there were such contacts would not be an 
     inappropriate thing for you to provide the Committee.''
       General Kagan consistently declined to answer questions on 
     whether she would vote to take two critical cases as Justice.
       Toward the conclusion of my second round of questions, I 
     told General Kagan:
       I think the commentaries in the media are accurate. We 
     started off with the standard you articulated at the 
     University of Chicago Law School about substantive 
     discussions. And they say we haven't had them here, and I'm 
     inclined to agree with them . . . It would be my hope that we 
     could find some place between voting ``no'' and having some 
     sort of substantive answers. . . . I think we are searching 
     for a way how senators can succeed in getting substantive 
     answers, as you advocated in the Chicago Law Review, short of 
     voting ``no.''
       In her 1995 article, General Kagan criticized Justice 
     Ginsburg's handling of her nomination hearing, stating that 
     ``Justice Ginsburg's favored technique took the form of a 
     pincer movement. When asked a specific question on a 
     constitutional issue, Ginsburg replied . . . that an answer 
     might forecast a vote and thus contravene the norm of 
     judicial impartiality. Said Ginsburg: `I think when you ask 
     me about specific cases, I have to say that I am not going to 
     give an advisory opinion on any specific scenario, because . 
     . . that scenario might come before me.' But when asked a 
     more general question, Ginsburg replied that a judge could 
     deal in specifics only; abstractions, even hypotheticals, 
     took the good judge beyond her calling. Again said Ginsburg: 
     `I prefer not to . . . talk in grand terms about principles 
     that have to be applied in concrete cases. I like to reason 
     from the specific case.'''
       However, General Kagan failed to take her own advice. She 
     frequently refused to answer questions without having a 
     concrete case or briefs to read. In my attempt to find her 
     views on the ``congruence and proportionality'' standard, she 
     repeatedly avoided answering, saying ``I've not delved into 
     the question the way I would want to as a judge,'' citing the 
     fact that she hadn't read any briefs as she would in a case 
     in controversy.
       The Ginsburg-Kagan pincer movement creates a Catch-22 for 
     Senators, who must avoid asking about a concrete case that 
     could come before the Court, but then cannot receive any 
     answer from a nominee on a more abstract question because the 
     nominee simply shrugs and says, ``I haven't read the 
     briefs.''
       In her article, General Kagan went so far as to say she 
     understood why nominees refused to answer questions, calling 
     it a ``game'' in which the ``safest and surest route to the 
     prize'' involves avoiding substantive answers. She wrote 
     ``Neither do I mean to deride Justices Ginsburg and Breyer 
     for the approach each took to testifying. I am sure each 
     believed . . . that disclosing his or her views on legal 
     issues threatened the independence of the judiciary. (It is a 
     view, I suspect, which for obvious reasons is highly 
     correlated with membership in the third branch of 
     government.) More, I am sure both judges knew that they were 
     playing the game in full accordance with a set of rules that 
     others had established before them. If most prior nominees 
     have avoided disclosing their views on legal issues, it is 
     hard to fault Justice Ginsburg or Justice Breyer for 
     declining to proffer this information. And finally, I suspect 
     that both appreciated that, for them (as for most), the 
     safest and surest route to the prize lay in alternating 
     platitudinous statement and judicious silence. Who would have 
     done anything different, in the absence of pressure from 
     members of Congress?''
       General Kagan certainly did the same. . . . Even with 
     pressure from members of Congress, such as Senators Kohl, 
     Grassley, Coburn, and myself, she still refused to answer to 
     questions.
       In her article, General Kagan took issue with the Senators 
     for not insisting that nominees answer questions. She stated 
     that ``Senators today do not insist that any nominee reveal 
     what kind of Justice she would make, by disclosing her views 
     on important legal issues. Senators have not done so since 
     the hearings on the nomination of Judge Bork. They instead 
     engage in a peculiar ritual dance, in which they propound 
     their own views on constitutional law, but neither hope nor 
     expect the nominee to respond in like manner.''
       Again, I asked General Kagan several specific questions 
     that she refused to answer. When I asked a direct question as 
     to whether she would apply to the congruence-and-
     proportionality test in evaluating the constitutionality of 
     laws passed under Congress's Fourteenth Amendment remedial 
     authority, she refused to answer. When Senator Kyl asked her 
     if detainees had habeas rights, she refused to answer. 
     Senator Grassley asked her if Heller was correctly decided 
     and she refused to answer. So I would hope that General Kagan 
     will not claim that all Senators participating in her 
     confirmation hearing did not hope for, or expect, substantive 
     answers. We tried our best to get her to answer questions, 
     but it was General Kagan who insisted on avoiding substantive 
     answers.

  Mr. SPECTER. Finally, Mr. President, I ask unanimous consent that a 
copy of an op-ed which I wrote which appeared in USA Today be printed 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                    [From USA Today, July 15, 2010]

           Specter: ``Kagan Did Just Enough To Win My Vote''

                           (By Arlen Specter)

       Supreme Court nominee Elena Kagan did little to undo the 
     impression that nominating hearings are little more than a 
     charade in which cautious non-answers take the place of 
     substantive exchanges.
       In this, she was following the practice of high court 
     nominees since Judge Robert Bork. But her non-answers were 
     all the more frustrating, given her past writings that the 
     hearings were vacuous and lacked substance. She accused 
     Justice Ruth Bader Ginsburg and Stephen Breyer of 
     stonewalling, but then she did the same, leaving senators to 
     search for clues on her judicial philosophy.
       Her hearings showed an impressive legal mind, a ready humor 
     and a collegial temperament suitable to the court. But they 
     shed no light on how she feels about the court's contemptuous 
     dismissal of Congress' ``fact-finding'' role, its overturning 
     of precedent in allowing corporate political advertising, and 
     the expansion of executive authority at the expense of 
     congressional power.
       She offered no meaningful observations on U.S. vs. 
     Morrison, in which the court overturned the Violence Against 
     Women Act, blaming Congress' ``method of reasoning,'' 
     notwithstanding a ``mountain of data assembled by Congress'' 
     demonstrating ``the effects of violence against women on 
     interstate commerce'' noted in Justice David Souter's 
     dissent.
       She offered no substantive comment on Citizens United, in 
     which the court reversed a century-old precedent by allowing 
     corporations to engage in political advertising. Justice John 
     Paul Stevens said in dissent that the court showed disrespect 
     by ``pulling out the rug beneath Congress,'' which had 
     structured the campaign-finance reform bill, McCain-Feingold, 
     on a 100,000-page factual record based on standards cited in 
     a recent Supreme Court decision.
       Likewise, she avoided taking sides in the court's expansion 
     of executive authority, declining comment on the historic 
     clash posed by the Foreign Intelligence Surveillance Act and 
     the president's warrantless wiretapping authorized under the 
     Terrorist Surveillance Program.
       Despite repeated questioning, Kagan refused to comment on 
     the court's refusal to resolve a contentious dispute 
     involving the Sovereign Immunity Act and the Obama 
     administration's foreign policy. Survivors of 9/11 victims 
     sued Saudi Arabia, Saudi princes and a Saudi-controlled 
     charity with substantial evidence that they had financed the 
     9/11 terrorists. The Obama administration persuaded the court 
     not to hear the case, arguing that the Saudi Arabian conduct 
     occurred outside the U.S.
       On one controversial issue--the question of whether to 
     televise open Supreme Court proceedings--Kagan was candid, 
     stating that she welcomed TV in the court and, if confirmed, 
     would seek to convince her colleagues on the bench. ``It's 
     always a good thing,'' she said, ``when people understand 
     more about government, rather than less. And certainly, the 
     Supreme Court is an important institution and one that the 
     American citizenry has every right to know about and 
     understand.''
       Her testimony recognized that the court is a public 
     institution that should be available to all Americans, not 
     just the select few who can travel to Washington. A recent C-
     SPAN poll found that 63% of Americans support televising the 
     Supreme Court's oral arguments.
       Given the fact that the court decides all of the cutting-
     edge questions--a woman's right

[[Page S5943]]

     to choose, death penalty cases for juveniles, affirmative 
     action, freedom of speech and religion--public demand for 
     greater transparency should come as no surprise. When 85% of 
     those polled think the Citizens United case expanding 
     corporate spending in politics was a bad decision, one can 
     conclude they want to know why the court decided as it did.
       On balance, Kagan did little to move the nomination 
     hearings from the stylized ``farce'' (her own word) they have 
     become into a discussion of substantive issues that reveal 
     something of the nominee's judicial philosophy and 
     predilections.
       It may be understandable that she said little after White 
     House coaching and the continuing success of stonewalling 
     nominees. But it is regrettable. Some indication of her 
     judicial philosophy may be gleaned by her self-classification 
     as a ``progressive'' and her acknowledged admiration for 
     Justice Thurgood Marshall. That suggests she would uphold 
     congressional fact-finding resulting in remedial legislation 
     and protect individual rights in the congressional-executive 
     battles.
       The best protection of those values may come from the 
     public's understanding through television of the court's 
     tremendous power in deciding the nation's critical questions. 
     In addition to her intellect, academic and professional 
     qualifications, Kagan did just enough to win my vote by her 
     answers that television would be good for the country and the 
     court, and by identifying Justice Marshall as her role model.

  Mr. SPECTER. I thank the Presiding Officer, and I thank my 
distinguished colleague from Florida.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. LeMIEUX. Mr. President, it is always good to follow my 
distinguished colleague from Pennsylvania and to hear his comments.

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