[Congressional Record Volume 156, Number 108 (Wednesday, July 21, 2010)]
[Senate]
[Pages S6041-S6042]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            KAGAN NOMINATION

  Mr. BUNNING. Mr. President, today I rise to speak on the nomination 
of Solicitor General Elena Kagan to be a Justice on the United States 
Supreme Court.
  After much consideration, I cannot support this nomination. I have 
been following this progress very closely. I have been reading her 
memos and other documents from her career, and I watched her 
confirmation hearings before the Senate Judiciary Committee. I met with 
her one on one and was able to ask her eight different questions. 
Unfortunately, I find her unsuitable to serve a lifetime appointment as 
a member of the U.S. Supreme Court.
  When I spoke on the nomination of Justice Sotomayor last year, I 
pointed out the problems of the Supreme Court and other judges trying 
to replace Congress and State legislatures. Important social issues 
have been taken out of the political process and decided by unelected 
judges. I can say for certain that this is not the way the Founding 
Fathers and the authors of the Constitution intended for it to work. 
The creation of law is reserved for elected legislatures chosen by the 
people. The Supreme Court is not a nine-person legislature created to 
interact with or replace the U.S. Congress.
  When judges and Justices take the law into their own hands and act as 
if they are a legislative body, it flies in the face of the 
Constitution. Because of this, whether it is the Supreme Court or the 
lower courts, many people have lost respect for our judicial system. 
This cannot continue to happen.
  In addition to the obvious constitutional concerns, if some day the 
public and the rest of the political system begin to tune out the 
courts and ignore their decisions altogether, it would be very 
dangerous for our country. I opposed Justice Sotomayor's nomination 
because I did not feel she understood this. I am afraid I have to say 
the same for Ms. Kagan.

  The first problem I wish to discuss is her lack of experience. 
According to a Congressional Research Service analysis, Justices 
without prior judicial experience practiced law for an average of 21 
years before their appointment to the Supreme Court. Recent polls have 
shown that an overwhelming majority of Americans feel that prior 
judicial experience is an important qualification to be a Justice on 
the Supreme Court.
  Of modern Supreme Court Justices, former Chief Justice William 
Rehnquist was the last person nominated without judicial experience, 
and that was almost 40 years ago. However, Chief Justice Rehnquist was 
a practicing attorney for years prior to his nomination.
  Ms. Kagan herself said:

       It is an embarrassment that the President and Senate do not 
     always insist, as a threshold requirement, that a nominee's 
     previous accomplishments evidence an ability not merely to 
     handle but to master the ``craft'' aspects of being a judge.

  Prior to her appointment to the Solicitor General's job in 2009, Ms. 
Kagan was a stranger to the courtroom. She never tried a case to 
verdict or served as a judge. She argued her first case as

[[Page S6042]]

a lawyer less than 1 year ago. While Ms. Kagan has a very extensive 
background in the law, both academically and politically, I do not 
believe she has mastered the craft of judging.
  I have serious concerns that Ms. Kagan will have a very hard time 
separating her personal views from the legal interpretation of the 
Constitution. While Ms. Kagan was dean of Harvard Law School, she 
banned military recruiters from the Harvard campus during a time of war 
because she believed the don't ask, don't tell law, developed by the 
Clinton administration in which she served--she called it a ``moral 
outrage'' of the ``first order.''
  She worked for Bill Clinton in his administration. She argued that 
the Solomon amendment, which Congress passed, despite its plain text 
and plain congressional intent behind it, allowed law schools to bar 
access to military recruiters. Ms. Kagan herself wrote an e-mail to the 
Harvard community that in barring recruiters, she was acting in the 
hope that the Federal Government would choose not to enforce the law of 
the land. I find it very troubling that a nominee to the Supreme Court 
would change school policy and disregard Federal law during a time of 
war because of her own personal beliefs. Fortunately, not a single 
Supreme Court Justice agreed with her position and noted that her 
interpretation was rather clearly not what Congress had in mind.
  As associate White House counsel to President Bill Clinton, Ms. Kagan 
played a critical role in the debate over partial birth abortions and 
did everything she could to halt legislation going through Congress to 
ban that horrible procedure. She worked with the medical groups 
supporting the practice, rewriting their scientific conclusions to 
better reflect her preference on partial-birth abortion. The Supreme 
Court relied on this language in their decision to overturn a Nebraska 
law banning this procedure. It appalls me that someone with no medical 
background would try to alter scientific conclusions to defend such a 
monstrosity of a procedure.
  In one memo, she advised President Clinton to support a Democratic 
alternative in order to ``sustain [his] credibility on [the issue] and 
prevent Congress from overriding [his] veto.'' This is concerning 
behavior from someone who now wishes to serve on the highest Court in 
the land. If she was willing to rewrite scientific conclusions, who is 
to say how far she would go with rewriting the Constitution?
  I also have serious concerns about Ms. Kagan's hostility to second 
amendment rights. While she was clerking for the Supreme Court Justice 
Thurgood Marshall, Ms. Kagan was asked to consider a case similar to 
the 2008 Heller case, in which the Court struck down the DC gun ban and 
found that the second amendment confers an individual right to keep and 
bear arms. In examining this earlier case, Sandidge v. U.S., she wrote 
that:

       Mr. Sandidge's sole argument is that the District of 
     Columbia's firearm statute violates his constitutional right 
     to ``keep and bear arms.'' I am not sympathetic.
       Those were her words.

  It is not the job of the Supreme Court or any other court of the 
land, for that matter, to be sympathetic. That belongs best in 
legislatures which can reflect the wishes of the people who voted for 
the Members of those bodies.
  Recently, supporters of individual rights and liberties won an 
important victory when the Supreme Court ruled in the McDonald case 
that the second amendment was a fundamental right that is binding to 
all the States. I fear her appointment to the Supreme Court could undo 
the progress from the Heller and McDonald decisions that recognize 
Americans have the right to defend themselves. Throughout her 
confirmation hearings, Ms. Kagan repeatedly stated she would accept the 
Heller and McDonald decisions as settled law. In her confirmation 
hearings, Justice Sotomayor also appeared to accept the second 
amendment rights. Specifically, Justice Sotomayor said she understood 
`` . . . the individual right fully that the Supreme Court recognized 
in Heller.'' However, in her first year on the Court, she joined the 
dissenting opinion in McDonald saying:

       I can find nothing in the Second Amendment's text, history, 
     or underlying rationale that could warrant characterizing it 
     as ``fundamental'' insofar as it seeks to protect the keeping 
     and bearing of arms for private self-defense purposes.

  Finally, I was not satisfied with Ms. Kagan's responses regarding the 
commerce clause and the limits of power of the Federal Government. 
Right now, we have the government taking over each sector of our 
economy, from banking, as the majority leader and minority leader spoke 
about, and the auto bailouts, which they both spoke about, to an 
unprecedented takeover of our health care system. In her testimony, Ms. 
Kagan left no doubt that she sees virtually no limit on congressional 
power. This is extremely frightening to me, to say the very least.
  The Framers of the Constitution made it very clear what the role of 
the Court should be. Anyone appointed to the Supreme Court must be 
willing to evaluate laws as they are written under the plain meaning of 
the Constitution. A Justice should not be appointed in order to achieve 
specific results in any case. We have no judicial record of Ms. Kagan's 
to look at to see how she would rule in any of these such cases. We 
only have a record as an academic and a political adviser to look at as 
her qualifications to be a Supreme Court Justice. While Ms. Kagan has a 
very impressive background, I do not have faith that she would fully 
respect the roles of the judiciary and the legislative branch.
  I am very sorry to say for just the second time while serving in the 
Senate that I will have to oppose a nomination to the Supreme Court, 
and I am not happy to do so. However, it is the constitutional role of 
the Senate to provide confirmation for this position and my duty as a 
Senator to be a part of this process. On viewing the record of 
Solicitor General Kagan, I do not find her to be a suitable candidate 
for a Justice of the Supreme Court of the United States and will vote 
against her whenever the Senate considers her nomination.
  I thank the President, yield the floor, and note the absence of a 
quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REED. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

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