[Congressional Record Volume 156, Number 116 (Tuesday, August 3, 2010)]
[Senate]
[Pages S6597-S6605]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                   Recognition of the Majority Leader

  The ACTING PRESIDENT pro tempore. The majority leader is recognized.
  Mr. REID. Mr. President, while we continue working this week to 
create jobs and finish the unfinished business of this work period, we 
will also turn to the nomination of Supreme Court nominee Elena Kagan.
  Giving the President the Senate's advice and consent, as prescribed 
by the Constitution for a lifetime appointment to the highest Court in 
the country, is one of this body's most solemn obligations.
  Chairman Leahy and Ranking Member Sessions oversaw, through the 
lengthy process, very thorough and respectful confirmation hearings. 
All of them were fair and I think were probative. I thank them both for 
their leadership.
  Several Senators have already made known how they will vote on Ms. 
Kagan's nomination. Those Senators and many others will come to the 
floor in the next few days to explain their positions. I will be one of 
them speaking in support of this exceptional nominee. I will certainly 
give her my vote.
  As the debate moves to the Senate floor and as we move toward a final 
vote, I look forward to a continuation of the passionate but civil 
discussion we have seen in the committee thus far. In this respect, 
perhaps we can draw inspiration from Ms. Kagan herself. In her 
confirmation hearing last year for the position she currently holds--as 
our Nation's Solicitor General, that is our Government's lawyer in 
cases that come before the U.S. Supreme Court--Ms. Kagan testified that 
one of the attributes she would bring to the job was an ``understanding 
of how to separate the truly important from spurious.''

[[Page S6598]]

  In the final days of this process, I suggest we keep those words in 
mind. I hope my fellow Senators will bring to this debate the same 
appreciation for what is critical to the Court and to our country, that 
will keep it separate from what is not.
  The ACTING PRESIDENT pro tempore. The Senator from Vermont is 
recognized.


                 Measure Placed on Calendar--H.r. 5901

  Mr. LEAHY. Mr. President, I understand that H.R. 5901 is at the desk 
and due for a second reading.
  The ACTING PRESIDENT pro tempore. Without objection, the clerk will 
read the title of the bill for the second time.
  The assistant legislative clerk read as follows:

       A bill (H.R. 5901) to amend the Internal Revenue Code of 
     1986 to exempt certain stock of real estate investment trusts 
     from the tax on foreign investment in United States real 
     property interests, and for other purposes.

  Mr. LEAHY. I object to any further proceedings on this measure at 
this time.
  The ACTING PRESIDENT pro tempore. Objection is heard. The bill will 
be placed on the calendar.
  Mr. LEAHY. Mr. President, what is the order?
  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senator from Vermont, Senator Leahy, will control the first 30 minutes, 
and the Senator from Alabama, Senator Sessions, will control the second 
30 minutes.
  The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, more than 12 weeks ago, President Obama 
nominated Elena Kagan to succeed Justice John Paul Stevens as an 
Associate Justice of the Supreme Court of the United States. When the 
President announced his choice on May 10, he talked about her legal 
mind, her intellect, her record of achievement, her temperament and her 
fair-mindedness.
  Having heard from Solicitor General Kagan at her confirmation hearing 
5 weeks ago, I believe the American people have a sense of her 
impressive knowledge of the law, her good humor, and her judicial 
philosophy. In her testimony, she made clear that she will base her 
approach to deciding cases on the law and the Constitution, not on 
politics, not on an ideological agenda. She indicated that she will not 
be the kind of Justice who will substitute her personal preferences, 
and overrule the efforts of Congress to protect hardworking Americans 
pursuant to our constitutional role. Solicitor General Kagan made one 
pledge to those of us who were at that hearing: that she will do her 
``best to consider every case impartially, modestly, with commitment to 
principle, and in accordance with law.''
  Incidentally, I might say, at the outset, I compliment Republicans 
and Democrats alike for the amount of time Senators spent at the 
hearing. I certainly compliment the ranking member, Senator Sessions. 
We may have disagreed on the outcome and on the vote, but I think 
Senators worked very hard to get questions asked, to make sure that the 
American people knew who Elena Kagan was. I note that Senator Sessions 
and I set the times for witnesses and all. We were constrained somewhat 
by the distinguished Presiding Officer's predecessor, who died that 
week, and we were trying to arrange time for many of us to go to the 
funeral. I wanted to publicly thank Senator Sessions for his help in 
working out that schedule.
  No one can question the intelligence or achievements of this woman. 
No one should question her character either. Elena Kagan was the first 
woman to be the Dean of the prestigious Harvard Law School and the 
first woman in our Nation's history to serve as Solicitor General, a 
position often referred to as the ``Tenth Justice.'' As a student, she 
excelled at Princeton, Oxford and Harvard Law School. She worked in 
private practice and briefly for then-Senator Joe Biden on the 
Judiciary Committee. She taught law at two of the Nation's most 
respected law schools, and counseled President Clinton on a wide 
variety of issues. She clerked for two leading judicial figures, Judge 
Abner Mikva on the Court of Appeals for the District of Columbia 
Circuit, and then for Supreme Court Justice Thurgood Marshall, on one 
of the most extraordinary lawyers in American history.
  I have been here since the time of President Gerald Ford, and I have 
long urged Presidents from both political parties to look outside what 
they call the ``judicial monastery,'' and not feel restricted to 
considering only Federal appellate judges to fill vacancies on the 
Supreme Court. This, of course, is what Presidents used to do. With his 
second nomination to the Court, President Obama has done just this; he 
has gone outside the judicial monastery. When confirmed, Elena Kagan 
will be the first non-sitting judge to be confirmed to the Supreme 
Court in almost 40 years, since the appointments of Lewis Powell and 
William Rehnquist.
  I know there was criticism by some Republicans that this nominee 
lacks judicial experience. Of course, that ignores one key fact. 
President Clinton nominated her to the DC Circuit Court in 1999. The 
Senate was controlled by Republicans at the time and it was Senate 
Republicans who refused to consider her nomination. She was pocket 
filibustered. Had the Republicans not done so, Elena Kagan would have 
been confirmed and would have had more than 10 years judicial 
experience. To give you some idea of her abilities, instead, when she 
was not allowed to have a vote for the DC Circuit Court, she went on to 
become an outstanding law professor, the first woman Dean of Harvard 
Law School--one of the most prestigious law schools in the country, 
actually the world--and the first woman to serve as the Solicitor 
General of the United States. Her nomination to the Supreme Court 
received the highest possible rating from the American Bar 
Association's Standing Committee on the Federal Judiciary. Her 
credentials and legal abilities have been extolled by many across the 
political spectrum. Two of these individuals were Justice Sandra Day 
O'Connor and Justice Antonin Scalia. In addition, Michael McConnell, 
Kenneth Starr and Miguel Estrada have given praise to this nomination. 
Like Justices Hugo Black, Robert Jackson, Earl Warren, William 
Rehnquist and so many others, Solicitor General Kagan's experience 
outside the judicial monastery will be valuable to her when she is 
confirmed. No one can question the intelligence or achievements of this 
woman. I hope nobody would question her character either.
  From the moment her nomination was announced, Solicitor General Kagan 
has spoken about the importance of upholding the rule of law and 
enabling all Americans to have a fair hearing. She said that ``law 
matters; because it keeps us safe, because it protects our most 
fundamental . . . freedoms; and because it is the foundation of our 
democracy.'' Like her, I believe the law does matter in people's lives. 
That is why I went to law school. That is why I practiced law and then 
became a prosecutor. That is why I ran for the Senate. I believe that 
the law matters in people's lives, because the Constitution is this 
amazing fabric of our Nation; it is our protection. She understands 
this, as did her mentor, Justice Thurgood Marshall.
  In her contribution to the 1993 tribute to Justice Marshall by the 
Texas Law Review, Elena Kagan recalled how Justice Marshall's law 
clerks had tried to get him to rely on general notions of fairness, 
rather than a strict reading of the law, so they could allow an appeal 
to proceed on a discrimination claim. She wrote that the then 80-year-
old Justice referred to his years trying civil rights cases and said: 
All you could hope for was that a court would not rule against you for 
illegitimate reasons. You could not expect that a court would bend the 
rules in your favor. That is the rule of law. Just as Sir Thomas More 
reminded his son-in-law in that famous passage from ``A Man for All 
Seasons,'' that the law is our protection, Justice Marshal reminded his 
law clerks that the existence of rules and the rule of law is the best 
protection for all, including the least powerful. Elena Kagan 
concluded, as I do, that Justice Marshall ``believed devoutly . . . in 
the rule of law.'' He was a man of the law in the highest sense. He 
understood the Constitution's promise of equality.

  I was disappointed to see the manner in which his legacy was treated 
by some during the recent confirmation hearing, and to read that there 
are Republican Senators, currently serving, who recently said they 
would vote

[[Page S6599]]

against Thurgood Marshall's confirmation to the Supreme Court if he 
were up now. He was a giant, and I would hope that if he were here 
again, those Senators would reconsider whether they would vote for him.
  With this nomination, Elena Kagan follows in the footsteps of Justice 
Marshall, who was also nominated to the Supreme Court from the position 
of Solicitor General. She broke a glass ceiling when she was appointed 
as the first woman to serve as Solicitor General of the United States 
and when she served as the first woman dean of the Harvard Law School. 
When the Supreme Court next convenes, for the first time in our 
history, I predict there will be three women serving together among the 
nine Justices.
  The stakes at the Nation's highest court could not be higher. One 
need look no further than the Lilly Ledbetter case to understand the 
impact that each Supreme Court appointment has on the lives and 
freedoms of countless Americans. In the Ledbetter case, five Justices 
of the Supreme Court struck a severe blow to the rights of working 
families across our country. Congress acted to protect women and others 
against discrimination in the workplace more than 40 years ago, but we 
still struggle to ensure that all Americans--women and men--receive 
equal pay for equal work. It took a new Congress, joined by our new 
President, to reverse the activist conservative majority in the Supreme 
Court by passing the Lilly Ledbetter Act, striking down the immunity 
the Supreme Court had given to employers who discriminate against their 
employees and successfully hid their wrongdoing. The Ledbetter case 
said, in a decision I still find shocking, that they could pay men a 
higher rate than women for the same work. As long as they kept it 
hidden, it was OK.
  Recently in the Citizens United case, just one vote on the Supreme 
Court determined that corporate money can drown out the voice of 
Americans in elections that decide the direction of our democracy. They 
said that if British Petroleum wanted to spend hundreds of millions of 
dollars to defeat people who want to tighten the controls on our 
offshore drilling, or want to tighten the kind of inspections required 
for offshore drilling, British Petroleum, according to the Supreme 
Court, could spend hundreds of millions of dollars to defeat these 
people.
  I had hoped that Senate Republicans would join our effort to respond 
to the conservative activist majority of the Supreme Court, who wrongly 
decided to override its own precedent and 100 years of legal 
development in Citizens United. Unfortunately, last week they 
filibustered the DISCLOSE Act and gave their endorsement to unfettered 
corporate influence in American elections.
  For all the talk about ``judicial modesty'' and ``judicial 
restraint,'' from the nominees of a Republican President at their 
confirmation hearings, we have seen a Supreme Court in the last 5 years 
that has been anything but modest and restrained. What we have seen all 
too often in these last years is the activist conservative members of 
the Supreme Court substituting their own judgment for that of the 
American people's elected representatives.
  I have always championed judicial independence. I think it is 
important that judicial nominees understand that, as judges, they are 
not members of an administration--any administration, Democratic or 
Republican, but they are judicial officers. They should not be 
political partisans, but judges who uphold the Constitution and the 
rule of law for all Americans. That is what Justice Stevens did in 
Hamdan, which held the Bush administration's military tribunals 
unconstitutional, and what he tried to do in Citizens United. That is 
why intervention by an activist conservative majority in the 2000 
Presidential election in Bush v. Gore was so jarring and wrong. Mr. 
Gore had gotten the majority of votes throughout the country, but there 
was just one vote on the Supreme Court that he didn't get--the one vote 
that decided the election. That one vote was given to President Bush.
  During her confirmation hearings, Solicitor General Kagan reflected 
an understanding of the judicial role and the traditional view of 
deference to Congress and judicial precedent. This is the mainstream 
view and one once embraced by conservatives. She indicated she would 
not be the kind of Justice who would substitute her personal 
preferences and overrule congressional efforts designed to protect 
hard-working Americans pursuant to our constitutional role. In fact, it 
is precisely because of Solicitor General Kagan's independence that 
many Republicans have announced their opposition to her nomination. 
They oppose her not because she would be a judicial activist as they 
claim, but rather because she would not overrule Congress as much as 
they would like. They seem not to like the fact that she is genuinely 
committed to judicial restraint rather than furthering a conservative 
ideological agenda.
  Some who oppose this nomination do so because they seek to make this 
nomination a continuation of the fight over health care. They seek to 
transform this policy dispute they lost in Congress into a 
constitutional one that goes against 100 years of law and Supreme Court 
precedents. They would turn back the clock by resurrecting long-
discredited legal doctrines wisely rejected nearly a century ago. They 
oppose Solicitor General Kagan because she will not commit to a narrow 
and outmoded legal view that would undermine the constitutionality of 
health insurance reform.
  Congress has enacted and the President has signed into law the 
landmark Patient Protection and Affordable Care Act. I believe Congress 
was right to do so in order to address our health care crisis and 
ensure that Americans who work hard their entire lives are not robbed 
of their family's security because health care is too expensive. We 
were right to make sure that hard-working Americans do not risk 
bankruptcy with every illness. Many Republican Senators disagreed, as 
is their right, and voted against the law. But many of those who 
opposed this law now seek to do in the courts what they could not do by 
obstruction in Congress. They are so adamant in seeking this result, 
that they would turn back the clock by resurrecting long-discredited 
legal doctrines wisely rejected a nearly a century ago.
  In framing their opposition to health insurance reform as a 
constitutional attack, these critics would also undermine the 
constitutional basis of laws against child labor and those setting a 
minimum wage or the Social Security Act, Medicare, the Clean Water Act, 
the Clean Air Act, and the landmark Civil Rights Acts. All are 
constitutional because of Congress's authority to legislate pursuant to 
the core powers vested in Congress by article I, section 8 of the 
Constitution, including the general welfare clause, the commerce 
clause, and the necessary and proper clause. The radical consequences 
of a narrow-minded agenda would be to erode the Supreme Court's time-
honored interpretation of these enumerated powers that give Congress 
the ability to promote the general welfare of the American people.
  These critics wish to return to the conservative judicial activism of 
the early 1900s, a period known by reference to one of its most 
notorious cases, the 1905 Lochner decision in which the Supreme Court 
struck down a New York State law protecting the health of bakers by 
regulating the number of hours they could work.
  During this period of unbridled conservative judicial activism, the 
Supreme Court substituted their own views of property for those of the 
elected branches in order to strike down nearly 200 laws, including 
laws outlawing child labor--something we take for granted today--and 
laws protecting Americans from sick chickens--something that created a 
huge health hazard. They envisioned their principal role as the 
defender of business's profits--profits they made with child labor--and 
the protector of unrestrained ability to perform contracts, however 
onerous or one-sided. The American people suffered. Their rights went 
unprotected. Congress was unable to provide assistance. That is not a 
time anyone should want to return to because it was based on artificial 
legal restraints that shackled the people's elected representatives in 
Congress.
  Millions of Americans rely on Social Security, Medicare, unemployment 
benefits, minimum wage laws, and other programs to protect Americans in 
tough economic times. This radical conservative agenda is a threat to 
Federal disaster relief and environmental

[[Page S6600]]

regulations and even laws responding to the reckless and fraudulent 
behavior that wrecked our economy.
  Progressive opponents of these artificial legal restraints ultimately 
succeeded, with the support of the American people, in establishing 
Social Security, minimum wage laws, and antidiscrimination laws to 
protect the American people. The programs of the New Deal that helped 
Americans through the Great Depression would be unconstitutional if 
radical conservative critics had their way. Radical conservatives who 
seek to again impose artificial legal restraints on Congress and the 
American people would abandon the New Deal programs of the 1930s such 
as social security and the Great Society programs of the 1960s such as 
Medicare to the detriment of the American people. These are the 
programs that for the last 75 years have helped the United States 
become a world leader, with the economic security of our citizens 
leading our economy to grow to lead the world.
  Millions of Americans rely on Social Security, Medicare, unemployment 
benefits, minimum wage laws and other programs that protect American 
families in tough economic times such as these. This is no academic 
discussion. This radical conservative agenda is a threat to Federal 
disaster relief, environmental regulations, and even laws responding to 
the reckless and fraudulent behavior that wrecked the economy. 
America's great safety net for those in need would be left in tatters 
if this outmoded legal doctrine were to take root.
  Ask our fellow Americans in the gulf, those who have lost their jobs 
in the recession and those who have lost their homes, whether the Court 
should adopt this radical view of the limits of Congress's power to 
help them. Ask them if they want to roll back the clock and overturn 
laws passed by Congress to protect hard-working Americans. The 
conservative agenda to restore the Lochner era would leave hard-working 
Americans without the protection their lifetimes of hard work have 
earned them.
  The fact that Elena Kagan will not state that she shares the views of 
those who opposed helping hard-working Americans obtain access to 
affordable health care does not mean she is outside the mainstream--far 
from it. The fact that some Republican critics opposed health care 
reform does not make it unconstitutional.
  The Constitution in fact provides a clear basis for Congress' 
authority to enact health care insurance reform. Our Constitution 
begins with a preamble that sets forth the purposes for which ``We the 
People of the United States'' ordained and established it. Among the 
purposes set forth by the Founders was that the Constitution was 
established to ``promote the general Welfare.'' It is hard to imagine 
an issue more fundamental to the general welfare of all Americans than 
their health. The authority and responsibility for taking actions to 
further this purpose is vested in Congress by article I of the 
Constitution. As I stated earlier, article I, section 8, sets forth 
several of the core powers of Congress, including the general welfare 
clause, the commerce clause and the necessary and proper clause. These 
clauses form the basis for Congress's power.
  Any serious questions about congressional power to take comprehensive 
action to build and secure the social safety net have been settled over 
the past century. As noted by Tom Schaller, enforcing the individual 
mandate requirement by a tax penalty is far from unprecedented, despite 
the claims of critics. Individuals pay for Social Security and 
Medicare, for example, by payroll taxes collected under the Federal 
Insurance Contributions Act, FICA. These FICA payments are typically 
collected as deductions and noted on Americans' paychecks every month. 
Professor Schaller wrote:

       These are the two biggest government-sponsored insurance 
     programs administered by the [Federal Government], and two of 
     the largest line items in the federal budget. These paycheck 
     deductions are not optional, and for all but the self-
     employed they are taken out immediately.

  The individual mandate requirement in the Patient Protection and 
Affordable Care Act is hardly revolutionary when viewed against the 
background of Social Security and Medicare that have long required 
individual payments.

  Congress has woven America's social safety net over the last 
threescore and 13 years, beginning before I was born. Congress's 
authority to use its judgment to promote the general welfare cannot now 
be in doubt. America and all Americans are the better for it. Growing 
old no longer means growing poor. Being older or poor no longer means 
being without medical care. These developments are all due in part to 
congressional action.
  The Supreme Court settled the debate on the constitutionality of 
Social Security more than 70 years ago in three 1937 decisions. In one 
of those decisions, Helvering v. Davis, Justice Cardozo wrote that the 
discretion to determine whether a matter impacts the general welfare 
falls ``within the wide range of discretion permitted to the 
Congress.'' Turning then to the ``nation-wide calamity that began in 
1929'' of unemployment spreading from state to state throughout the 
Nation, Justice Cardozo wrote of the Social Security Act: ``The hope 
behind this statute is to save men and women from the rigors of the 
poor house as well as from the haunting fear that such a lot awaits 
them when journey's end is near.'' In the Supreme Court's decision 
upholding the constitutionality of Social Security, Justice Benjamin 
Cardozo, one of our greatest jurists, explained that it is the people's 
elected representatives in Congress that consider the general welfare 
of the country and laws to secure it. He recognized that it was the 
people's wisdom as enacted through their representatives that was to be 
respected, not the personal preference of a small elite group of 
judges.
  The Supreme Court reached its decisions upholding Social Security 
after the first Justice Roberts--Justice Owen Roberts--in the exercise 
of good judgment and judicial restraint began voting to uphold key New 
Deal legislation. He was not alone. It was Chief Justice Hughes who 
wrote the Supreme Court's opinion in West Coast Hotel v. Parrish 
upholding minimum wage requirements as reasonable regulation. The 
Supreme Court also upheld a Federal farm bankruptcy law, railroad labor 
legislation, and the Wagner Act on labor relations. In so doing, the 
Supreme Court abandoned its judicially created veto over congressional 
action with which it disagreed on policy grounds and rightfully 
deferred to Congress's constitutional authority.
  The opponents of health care insurance reform are now opposing the 
nomination of Elena Kagan and now going to the extreme to attempt to 
call into question the constitutionality of America's established 
social safety net. They would turn back the clock to the hardships of 
the Great Depression, and thrust modern America back into the 
conditions of a Charles Dickens novel. That path should be rejected 
again now, just as it was when Americans confronted great economic 
challenges more than 70 years ago. To attempt to strike down principles 
that have been settled for nearly three-quarters of a century is wrong, 
damaging to the Nation, and would stand the Constitution on its head.
  Due to Republican obstruction, it took an extraordinary majority of 
60 Senators, not a simple majority of 51, for the Senate's will to be 
done. The fact that Senate Republicans disagree with the effort to help 
hardworking Americans obtain access to affordable health care does not 
make it unconstitutional. As Justice Cardozo wrote for the Supreme 
Court 73 years ago in upholding Social Security:

       [W]hether wisdom or unwisdom resides in the scheme of 
     benefits set forth . . . it is not for us to say. The answer 
     to such inquiries must come from Congress, not the courts.

  Justice Cardozo understood the separation of powers enshrined in the 
Constitution and the powers entrusted by our Constitution to Congress. 
This is true judicial modesty reflecting the understanding of the 
respective roles of Congress and the courts. Surely when Congress acts 
to provide for the general welfare of all Americans it does so pursuant 
to its constitutional authority.
  I believe that Congress was right when it decided that the lack of 
affordable health care and health insurance and the rising health care 
costs that

[[Page S6601]]

burden the American people are problems, ``plainly national in area and 
dimensions.'' Those were the words Justice Cardozo used to describe the 
widespread crisis of unemployment and insecurity during the Great 
Depression. I believe that it was right for Congress to determine that 
it is in the general welfare of the Nation to ensure that all Americans 
have access to affordable quality health care. Whether other Senators 
agree or disagree, I would hope that none would contend that we should 
turn back the clock to the Great Depression when conservative activist 
judges prevented Congress from exercising its powers, making its 
legislative determinations and helping the American people through 
tough economic times. Sadly, some are making precisely that argument 
and contend that this settled meaning of the Constitution should be 
upended.
  The dark days of unbridled conservative judicial activism in which 
Congress's hands were tied from outlawing child labor and enacting a 
minimum wage and social security are long gone and better left behind. 
The Constitution, Supreme Court precedent, our history and the 
interests of the American people all stand on the side of Congress's 
authority to enact health care insurance reform legislation.
  Under article I, section 8, Congress has the power ``to regulate 
Commerce
. . . among the several States.'' Since at least the time of the Great 
Depression and the New Deal, Congress has been understood and 
acknowledged by the Supreme Court to have power pursuant to the 
commerce clause to regulate matters with a substantial effect on 
interstate commerce. That is consistent with Elena Kagan's testimony.
  In Solicitor General Kagan's responses to questions about the 
commerce clause I heard an echo of Justice Cardozo's explanation for 
why Social Security is constitutional and of Justice Oliver Wendell 
Holmes's famous dissent in Lochner. In particular, I recall Solicitor 
General Kagan's response to a question from Senator Coburn that he 
later admitted was intended to get her to signal how she would decide a 
constitutional challenge to health care insurance reform. He asked 
Solicitor General Kagan what she thought of a hypothetical law 
requiring Americans to eat three vegetables a day. She went on to 
explain:

       I think the question of whether it's a dumb law is 
     different from . . . the question of whether it's 
     constitutional, and . . . I think that courts would be wrong 
     to strike down laws that they think . . . are senseless just 
     because they're senseless.

  The Supreme Court long ago upheld laws like the Fair Labor Standards 
Act against legal challenges, overruling its decision barring Congress 
from outlawing child labor and establishing basic working conditions 
such as a minimum wage. The days when women and children could not be 
protected are gone. The time when the public could not be protected 
from sick chickens infecting them are gone. The years when farmers 
could not be protected from market failures or natural disasters are 
gone. The era of conservative activist judges voiding regulation that 
did not guarantee profits to corporations should be gone. The reach of 
Congress's commerce clause authority has been long established and 
well-settled. Solicitor General Kagan's answer to Senator Coburn's 
question reflects not only this well-settled understanding, but also 
the understanding of the proper roles of each of the branches that was 
restored when the Supreme Court rejected the misguided conservative 
activism of the Lochner era.
  Since the great Chief Justice Marshall's interpretation of the 
commerce clause in 1824, Congress has been understood and acknowledged 
by the Supreme Court to have the power ``to prescribe rules'' to govern 
commerce that ``concerns more than one State.'' It was this same 
understanding that Justice Cardozo followed in upholding the Social 
Security Act and that Justice Felix Frankfurter later praised as Chief 
Justice Marshall's extraordinary achievement of capturing, for all 
time, the essential meaning of the commerce clause. Pursuant to this 
understanding of its power under the commerce clause, Congress enacted 
not only Federal disaster relief from the 18th century but also the 
1964 Civil Rights Act prohibiting racial discrimination by public 
accommodations and the landmark Clean Air and Clean Water Acts, both of 
which President Nixon signed into law. Would conservative activists now 
argue that these acts, the Civil Rights Act, the Clean Air Act and the 
Clean Water Act, should suddenly be declared unconstitutional as beyond 
Congress's power?
  Even recent decisions by a Supreme Court dominated by Republican-
appointed justices have affirmed this rule of law. In 2005, the Supreme 
Court ruled in Gonzales v. Raich that Congress had the power under the 
commerce clause to prohibit the use of medical marijuana. This was 
upheld even though the marijuana was grown and consumed at home. It was 
upheld on the same rationale as Wickard v. Filburn in 1942, because of 
its impact on the national market for marijuana. Yet Republican 
Senators and conservative ideologues contend that Wickard should be 
discarded. Would they also demand that Federal laws against drugs be 
declared unconstitutional?
  Justice Anthony Kennedy and Justice Sandra O'Connor, both 
conservative Justices appointed by Republican Presidents, astutely 
noted in their 1995 concurrence in United States v. Lopez:

       [T]the Court as an institution and the legal system as a 
     whole have an immense stake in the stability of our Commerce 
     Clause jurisprudence as it has evolved to this point. [That] 
     fundamental restraint on our power forecloses us from 
     reverting to an understanding of commerce that would serve 
     only an 18th-century economy . . . and mandates against 
     returning to the time when congressional authority to 
     regulate undoubted commercial activities was limited by a 
     judicial determination that those matters had an insufficient 
     connection to an interstate system.

  They are right as a matter of law and right when it comes to the 
interests of the American people.
  The Constitution also provides in article I, section 8, that Congress 
has the power ``to make all Laws which shall be necessary and proper 
for carrying into Execution the foregoing Powers and all other Powers 
vested by his Constitution in the United States.'' The Supreme Court 
settled the meaning of the necessary and proper clause almost 200 years 
ago in Justice Marshall's landmark decision for the Supreme Court in 
McCullough v. Maryland, during the dispute over the National Bank. 
Justice Marshall wrote that ``the clause is placed among the powers of 
Congress, not among the limitations on those powers.''

  He continued:

       Let the end be legitimate, let it be within the scope of 
     the Constitution, and all means which are appropriate, which 
     are plainly adopted to that end, which are not prohibited, 
     but consistent with the letter and spirit of the 
     Constitution, are constitutional.

  He concluded by declaring, in accordance with a proper understanding 
of the necessary and proper clause, that Congress should not be 
deprived ``of the capacity to avail itself of experience, to exercise 
its reason, and to accommodate its legislation to human affairs'' by 
judicial fiat. Chief Justice Marshall understood the Constitution, knew 
its text and knew the Framers. He rejected the constraints on Congress 
that conservative activists now propose in order to empower 
conservative judicial activism.
  The necessary and proper clause goes hand in hand with the commerce 
clause to ensure congressional authority to regulate activity with 
economic impact. Just this year the Supreme Court upheld provisions of 
the Adam Walsh Child Protection and Safety Act, a law we passed to 
allow for the civil commitment of sexually dangerous Federal prisoners, 
which was based on the commerce clause and the necessary and proper 
clause of the Constitution. As Justice Breyer wrote for seven Justices, 
including Chief Justice Roberts:

       [T]he Necessary and Proper Clause makes clear that the 
     Constitution's grants of specific federal legislative 
     authority are accompanied by broad power to enact laws that 
     are ``convenient, or useful'' or ``conducive'' to the 
     authority's ``beneficial exercise.''

  Congress passes laws like the Adam Walsh Act every year to protect 
the American people. Would those who want to redraft and limit the 
Constitution really want to declare the Adam Walsh Act and its 
provisions against pedophiles unconstitutional?
  Solicitor General Kagan's testimony shows that she both understands 
and recognizes, in accordance with the longstanding judgments of both 
Congress and the Supreme Court, that Congress's power to legislate 
under the commerce clause power and the necessary and proper clause is 
broad but

[[Page S6602]]

not unlimited. Indeed, she agreed with the Senator from Texas that the 
Supreme Court's decisions in Lopez and Morrison limit Congress's power 
to legislate ``when the activity that's being regulated is not itself 
economic in nature and is activity that's traditionally been regulated 
by the States.'' But, she noted that ``to the extent that Congress 
regulates the channels of commerce, the instrumentalities of commerce, 
and . . . things that substantially affect interstate commerce, there 
the Court has given Congress broad discretion.'' She is right as a 
matter of law. The American people are able to act through their 
elected representatives in Congress to secure the blessings of liberty 
because of this meaning of our Constitution.
  Through Social Security, Medicare, and Medicaid, Congress established 
some of the cornerstones of American economic security. And 
comprehensive health insurance reform has now joined them. Congress has 
acted within its constitutional authority to legislate for the general 
welfare of all Americans, whether they are from Vermont or West 
Virginia or Alabama or anywhere else. No conservative activist court 
should overstep the judiciary's role by seeking to turn back the clock 
and deny a century of progress.
  Those who would corrupt the Constitution by trying to revive the 
Lochner era are intent on a results-oriented litmus test. This litmus 
test would lead them now not just to vote against this nomination and 
the confirmation of Justice Thurgood Marshall as they have said, but 
also against Senate confirmation of Justice Sandra Day O'Connor, 
Justice David Souter, Justice John Paul Stevens, and Justice Anthony 
Kennedy--four Justices appointed by conservative Republican Presidents, 
all nominations I voted to confirm.
  It is interesting. I was here when John Paul Stevens' nomination came 
up. He was seen as a conservative from Illinois. He was nominated by a 
conservative President, Gerald Ford. He nominated him, and 2\1/2\ weeks 
later, the Senate, which was overwhelmingly Democratic, voted 
unanimously to confirm Justice John Paul Stevens. I have not always 
agreed with every decision of his, but, boy, I have agreed with my vote 
for his confirmation.
  With this litmus test I mentioned, it is not just Chief Justice Earl 
Warren, and Justice William Brennan and Justice Thurgood Marshall whose 
jurisprudence they are rejecting. Using these results-oriented litmus 
tests would require us to reject the vast majority of Justices who have 
served honorably on the U.S. Supreme Court, including Justice Benjamin 
Cardozo, Justice Oliver Wendell Holmes, Jr., Justice Harlan Fiske 
Stone, and Justice Charles Evans Hughes. I assume they would, as well, 
reject the greatest judge not to have been appointed to the Supreme 
Court, the Second Circuit's Judge Learned Hand, because he had been an 
outspoken critic of the so-called economic due process doctrine that 
allowed activist conservatives to substitute their views for those of 
Congress. Indeed, if they were to be consistent, they would have to 
rethink their support for the current Chief Justice, John Roberts, who 
testified at his confirmation hearing that during the Lochner era, when 
the Supreme Court was striking down economic regulations in the late 
1800s to the early 1930s, to quote John Roberts, ``it's quite clear 
that they [were] not interpreting the law, they [were] making the 
law.'' I agree with him. I will say parenthetically that I wish he had 
stayed consistent to that principle since he became Chief Justice. The 
demand by critics that Solicitor General Kagan adhere to legal views 
that would put her at odds with so many great Justices as the price of 
their vote is a strong reminder of how far many are seeking to stray 
from basic constitutional principles and traditions.
  We do not need judges or Justices to pass a litmus test from either 
the right or the left. In fact, I have urged Senators--they have heard 
me say this many times--do not listen to the single issue or special 
issue groups on either the right or the left when it comes to the 
Supreme Court. We have 300 million Americans in this great country. 
Most of the Justices we vote on will be here long after any one of us 
leaves this Chamber. There are only 100 Americans who actually get to 
vote on them. There are actually 101 people who are involved in this 
choice--first, the President, who nominates the person, but he cannot 
appoint the person unless we advise and consent. So we have 101 people 
with this awesome duty to pick somebody and to vote on somebody who is 
going to be there to protect the justice and the rights of all 300 
million Americans. It is an awesome responsibility.
  I tell groups of either the right or the left--and I have heard from 
many of them over the years on all these nominees on whom I voted--I am 
going to make up my own mind. I am going to bring my own Vermont 
principles, my own sense of Vermont fairness, my own experience, my own 
judgment to bear, and then I will make up my mind. I urge all Senators 
to do that. Ignore the special interest groups on the right or the 
left. Make up your own mind.
  As I said, we do not need judges or Justices who would pass a litmus 
test from the right or the left. We need judges and Justices who will 
respect the laws as passed by Congress and appreciate that adherence to 
precedence is a foundation of public confidence in our courts.
  (Mrs. SHAHEEN assumed the chair.)
  Mr. LEAHY. It is important that we restore public confidence in our 
courts. They do protect our rights. They do protect the Constitution. 
But we have to make sure we respect what they do. We need judges and 
Justices who will fairly apply the law and use common sense, Justices 
and judges who appreciate the proper role of the courts in our 
democracy and make decisions in light of the fundamental purposes of 
the law. This is the standard I applied when reviewing this nomination. 
It is the same standard I applied to every Supreme Court nomination, 
including six Justices nominated by Republican Presidents for whom I 
have voted. It is a standard I believe Solicitor General Kagan has met.
  Solicitor General Kagan not only has the necessary qualifications to 
be a Supreme Court Justice but has also demonstrated her respect for 
the rule of law, her appreciation for the separation of powers, and 
understands the meaning of our Constitution. Some may not want our 
country to move forward, to make progress, to move toward a more 
perfect union. But the issue squarely before this body is whether 
Solicitor General Kagan has the necessary qualifications, respect for 
the rule of law, and judicial independence to be confirmed by the 
Senate to serve on our Nation's highest court. I believe she does. This 
Vermonter will vote for Elena Kagan to be a Supreme Court Justice, and 
I will do it proudly.
  Madam President--the Chair having changed during this speech, first 
presided over by the distinguished Senator from West Virginia, and now 
my distinguished neighbor, the State of New Hampshire--the 
distinguished Senator from New Hampshire presides. With that, I will 
close.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. LEAHY. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Madam President, I see the distinguished Senator from 
Alabama on the floor. I yield back the remainder of my time.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Madam President, I appreciate Chairman Leahy. He is a 
strong and effective leader of our committee. We agree a lot of times. 
I try to work with him, and sometimes we disagree. One thing we will 
soon be doing that I look forward to very much is going to the White 
House--maybe in 30 minutes or so--to participate in the signing of a 
bill to eliminate the vast disparity between crack and powder cocaine 
sentences. The sentencing mechanism under the guidelines I think was 
unfair and needed to be corrected. I have been working on that issue 
for some time, and so has Chairman Leahy. We certainly agree on a lot 
of issues and get some things done, but we do not agree on this 
nomination.
  The office of Justice of the U.S. Supreme Court is one of the most 
important positions in our National Government. Justices are granted a 
degree of

[[Page S6603]]

independence unequaled anywhere in the United States. Justices hold 
lifetime terms, subject only to impeachment, and Congress may not even 
reduce their pay. Why did the Founders take such a step? They wanted 
our courts to be impartial, doing justice to the poor and the rich 
under the Constitution and laws of the United States, as their oath 
says, and they did not want them subject to political or other 
pressures that might affect their objectivity. They wanted judges who 
could do the right thing year after year, day after day.
  Presidents get to nominate, but the Senate must confirm. This advise-
and-consent power the Constitution gives is a confirmation process; it 
is not a coronation. Here, five Justices on the Supreme Court can 
hold--and four of them recently voted to, not the five necessary to 
render a majority opinion--that a company cannot publish a book or a 
pamphlet that criticizes a politician before an election. Five justices 
can hold that the government can allow States and cities to deny 
Americans the personal right to keep and bear arms, a right clearly 
stated in the Constitution.

  The American people have no direct control over these Justices. All 
they have and what they have a right to expect is that our Justices 
exercise self-control year after year, decade after decade. If this 
young nominee, Elena Kagan, were to serve to the age of the individual 
she seeks to replace, she would serve 38 years on the Supreme Court.
  Well, I am not able to support Elena Kagan for this office. I believe 
she does not have the gifts and the qualities of mind or temperament 
one must have to be a Justice. Worse still, she possesses a judicial 
philosophy that does not properly value discipline, restraint, and 
rigorous intellectual honesty. Instead, she seems to admire the view, 
and has as her judicial heroes, judges who favor expansive readings of 
what they call the living Constitution; whereby, judges seek--and in 
President Obama's words, who certainly shares this view--to advance ``a 
broader vision of what America should be.''
  Well, I don't believe that is a responsibility or a power given to 
judges--to advance visions of what America should be. Whose vision is 
it they would advance, I would ask. It would be the judge's vision. But 
they weren't appointed for that purpose. They were appointed to 
adjudicate cases.
  President Obama's judicial philosophy, I think, is flawed, and I 
certainly think Ms. Kagan shares his philosophy. The President 
basically said so when he appointed her. Her friends say it is so. Her 
critics say so. Her record of public action says so, and the style and 
manner of her testimony at the hearing evidenced such an approach to 
judging. I don't think it is a secret. I think this is pretty well 
known, that this is not a nominee committed to restraint or objectivity 
but one who believes in the power of judges to expand and advance the 
law and visions of what the judge may think is best for America.
  Ms. Kagan has been described as collegial, engaging, a consensus 
builder. These are fine qualities in many circumstances, and I am sure 
she possesses them. She seems to. But as to personal discipline, 
clarity of mind, the ability to come quickly to the heart of a matter, 
objectivity or impartiality, and scrupulous intellectual honesty--
characteristics essential for a judge--not so much has been said. 
Perhaps this is so because many liberal activists in America have lost 
faith in the idea of objectivity, which means they have lost faith in 
the reality of objective truth, the finding of which--the finding of 
truth--has been the goal, the central focus of the American legal 
system since its creation.
  Our modern law school minds and some false intellectuals far removed 
from real trials--and I have had the honor and privilege to have spent 
15 years trying cases before Federal judges and so I have a sense of 
this, I truly believe--are removed from these trials and from the 
necessity of rules for civil order. They think, many of them do--these 
professors and theoreticians--that laws are just tools for the powerful 
to control the powerless and that words can't have fixed meanings. 
Things change. We can't consult 16th century dictionaries to find out 
what the Founding Fathers meant when they wrote our Constitution. 
Indeed, Justice Sotomayor recently confirmed this when she quoted, with 
approval, the line: ``There is no objectivity, just a series of 
perspectives.''
  Americans are sick of political spin by politicians, and they do not 
want it from judges. They reject judges who rely on their empathy, as 
the President said a judge must have and that is what he looks for in a 
judge. The American people don't believe judges should rely on their 
empathy to decide legal cases or seek to advance their vision of what 
America should be. They know Justices are not above the law. They know 
Justices should be neutral umpires, not taking sides in the game. Above 
all, they know judges--especially Supreme Court Justices--should not 
legislate from the bench.
  I do not desire that the Supreme Court advance my political views. It 
is enough, day after day, that the Court follows the law deciding cases 
honestly. No more should ever be asked of them. I might not agree one 
day with this case or that one, but we have a right to expect those 
judges would be objective and not promote agendas. A recent commentator 
once said: ``We liberals have gotten to the point where we want the 
court to do for us that which we can no longer win at the ballot box.''
  Well, this nominee, I think, in my honest evaluation, comes from that 
mold. Yes, she is young, but her philosophy is not. It is an old, 
bankrupt judicial activism--a philosophy the American people correctly 
reject. In her writings, her judicial heroes, her extensive political 
activities, her actions at Harvard to unlawfully restrict the military, 
her hostility to congressional actions against terrorism in a letter 
she wrote, her efforts to block restrictions on partial-birth abortion 
while in the Clinton White House, her arguments before the Supreme 
Court last year that Congress can ban pamphlets criticizing politicians 
and, perhaps the most disturbing to me as someone who spent 15 years in 
the Department of Justice, her actions as Solicitor General of the 
United States, whereby she failed to defend the don't ask, don't tell 
congressional law--not military policy, a law she had openly, deeply 
opposed but promised to vigorously defend were she to be confirmed as 
Solicitor General--leave no doubt what kind of judge she would be: an 
activist, liberal, progressive, politically minded judge who will not 
be happy simply to decide cases but will seek to advance her causes 
under the guise of judging.
  In addition, her defense of these positions at her hearings, her 
testimony, in my opinion, lacked clarity, accuracy, and the kind of 
intellectual honesty you look for in someone who would sit on such a 
high and important Court. Indeed, her testimony was curious. She failed 
to convey to the committee, in my opinion, a recognition of the gravity 
of the issues with which she had been dealing and the nature of her 
role in dealing with some of these issues that she was involved with in 
her career. She seemed to suggest that things happened around her and 
she did all things right and no one should get upset about it.
  Some of these concerns, I think, could have been overcome, had we 
seen the superb quality of testimony at her hearing as given by that of 
Justices Roberts and Alito at their hearings. But, alas, that we did 
not see, not even close. Glib, at times humorous, conversant on many 
issues but not impressive on any in a more serious way, in my view. 
Based on so little serious legal practice--only 2 years, right out of 
law school in a law firm and 14 months as Solicitor General--this 
perhaps should not be surprising. The power of the testimony of Roberts 
and Alito did not spring fully formed from their minds either, though 
both seemed to be naturally gifted in the skills needed for superior 
judges, and I fear Elena Kagan is not so blessed.
  While she is truly intelligent, the exceptional qualities of her mind 
may be better suited to dealing with students and unruly faculty than 
with the daily hard work of deciding tough cases before the Supreme 
Court. But Roberts and Alito, on the other hand, were steeped in the 
law over many years as lawyers and judges. That is who they were. That 
is their skill. That was their craft. That was their business. They 
understood it. It showed. Ms. Kagan did not show that. I believe that

[[Page S6604]]

lack of experience was part of the reason her testimony was 
unconvincing.
  I think a real lawyer or experienced judge who had seen the courtroom 
and the practice of law would not have tried, as she did, to float 
their way through the hearing in the manner she did. Her testimony 
failed to evidence an understanding of the gravity of the issues with 
which she was dealing and the important nature of her role in them. She 
seemed to suggest these events just happened around her, none of which 
was her responsibility. Several times in the course of her testimony 
she inaccurately described the circumstances and the nature of the 
matters in which she had been engaged, to a significant degree. Her 
testimony was more consistent with the spin the White House was 
putting out than the truth. I was surprised and disappointed that she 
was not more candid and did not, through accurate testimony, dispel 
some of the false spin that had been put out in her favor.

  So now we are at the beginning of the discussion of the Kagan 
nomination. While I have been firm in my criticisms of the nominee, I 
have given considerable thought to the criticism that I have made and 
tried not to be inaccurate in them. I believe they are correct. But if 
I am in error, I will be pleased to admit and correct that error. No 
nominee should have their record unfairly sullied in this great Senate. 
That would be wrong. I, therefore, ask and challenge the supporters of 
the nominee to point out any errors in my remarks as we go forth so we 
can, above all, get the facts straight.
  The matters I will set forth today and later are serious. There is 
disagreement, I believe, between what the record, the facts, and the 
testimony show and the White House spin and even the Kagan spin--and I 
use that word carefully. So let us, therefore, begin this debate in all 
seriousness. Let us get to the bottom of these matters. There is a 
truth. We can ascertain what happened. Let us find out what happened in 
these matters. Let us get to the bottom of it.
  Some raise the question of how many Republicans will vote for the 
nominee. Another question to ask is: How many Democrats will vote 
against the nominee? I call on every Senator to study the record and 
make an informed and independent decision. We are not lemmings. We have 
a constitutional duty to make an independent decision. So I urge my 
Democratic colleagues to not just be a rubberstamp, to not allow 
political pressures to influence your decisions but conduct an 
independent and fair analysis of the nominee. I believe if Senators 
strongly advocate and believe judges should follow the law, not make 
it; that they should serve under the Constitution and not above it; 
that they should be impartial and objective--if Senators believe in 
that--they should have very serious trouble with this nomination.
  At this moment I am going to briefly mention a few of the serious 
concerns that were raised in the committee. I will in greater detail go 
through each of them in the next several days. I am sure other Senators 
will talk about them also. I will attempt to do so honestly and fairly, 
and at the end I will be listening to see if somehow I have misjudged 
the nominee on these matters and whether I should change my views. But 
I am very serious when I say the actions of this nominee over the 
entirety of her career indicate an approach to judging that is 
inconsistent with the classic American view of a judge as one who shows 
restraint, who follows the law, who adjudicates the matters before the 
court, and who is objective and fair.
  One of the more serious issues that has been discussed quite a bit is 
the nominee's handling of the U.S. military while she was dean at 
Harvard. She reversed Harvard's policy and banned the military from the 
campus recruiting office. During that period of time a protest against 
the military was held. She spoke to that protest crowd while in the 
building next door a military recruiter was attempting to recruit 
Harvard students for the U.S. military.
  She participated in the writing of a brief to oppose the don't ask, 
don't tell policy which she deeply opposed.
  The U.S. military did not have a policy called don't ask, don't tell. 
That was a law passed by the U.S. Congress and signed by President 
Clinton. It was the law of the land and it was not their choice. They 
followed, saluted, and did their duty. Yet Ms. Kagan barred them from 
the campus at Harvard. On four different occasions this Congress passed 
laws to try to ensure that our military men and women, during a time of 
two wars, were not discriminated against on college campuses in this 
country. One of them was a few months before, finally, it was written 
in a way they could not figure out a way to get around it. That was 
shortly before she barred them from the campus, subjecting Harvard to 
loss of Federal funds, which resulted in the military, when they 
finally realized that she had reversed this policy and found out they 
had been stonewalled and the front door of the university had been 
closed to them, appealed to the president of Harvard University and he 
reversed her position. It was not justified. It was wrong. It should 
not have been done.
  She did not seem to complain about the policy when she worked for 
President Clinton, who signed the law. But she punished the men and 
women who were prepared to serve and defend our country, and Harvard's 
freedom to carry on whatever these silly activities they want to carry 
on. So this is not a little bitty matter.
  When she was nominated for Solicitor General, this was raised and she 
was asked what if this don't ask, don't tell law is challenged in the 
Court? We know you oppose it. We know you have steadfastly opposed it. 
Will you defend it? It is the law of the land. You will be Solicitor 
General. You represent the U.S. Government before the Supreme Court. 
Will you defend it?
  She flat out said that she would defend the laws passed by Congress 
and specifically promised to defend don't ask, don't tell. This is a 
matter of some importance. I asked her about it, gave her opportunity 
to respond. She took 10 minutes--I did not interrupt her--with her 
explanation of why she did not assert an appeal to the Ninth Circuit 
ruling that seriously undermined don't ask, don't tell, because we know 
President Obama opposes it and we know she opposed it. We know the ACLU 
opposed it. They were the litigants in this case. She met with the 
ACLU.
  The ACLU did not want the Ninth Circuit case to go up to the Supreme 
Court. Why? The reason is they expected the Supreme Court would affirm 
the law. So what did Elena Kagan do? Did she vigorously defend the law? 
Did she take the opportunity to take this case to the Supreme Court and 
seek its affirmation by the Supreme Court? No, she allowed the case to 
be sent back--without appealing it--to a lower court to go through a 
long, prolonged process of discovery and trial that is disconnected to 
the plain fact of the legality of the policy. She did not properly 
defend the laws of the United States and she did not defend the law in 
this matter.
  The Solicitor General has that duty whether they like the law or not. 
Congressional actions, when challenged, should be defended, 
particularly one so easily defended, in my opinion, as this one. I 
believe that is a serious matter, so serious that if my analysis is 
correct, that she failed to defend that action after explicitly having 
promised to do so, then this is disqualifying in itself. She would have 
allowed her personal views, political pressures from perhaps her 
appointing officer, President Obama, to influence her decision in a way 
that went against her duty as Solicitor General. We are going to talk 
about that in great detail as we go along.
  As Solicitor General in the 14 months that she was there, she 
approved a filing of a brief calling on the Supreme Court to review and 
overturn a ruling by the Ninth Circuit Court of Appeals that had 
affirmed an Arizona law that said Arizona businesses that failed to use 
E-Verify or otherwise hire people who are illegally in the country 
would lose their business license. There is a Federal statute that 
explicitly says States can revoke licenses of businesses that violate 
our immigration laws.
  This is quite a bit stronger case than the other Arizona case that I 
think is improvidently being challenged, also by the Obama Department 
of Justice. But she approved this and again the trial court had ruled 
the law was good. The Ninth Circuit, the most liberal activist circuit 
in the country, approved

[[Page S6605]]

it unanimously, and now it is before the Supreme Court and now she 
asked that the Supreme Court take it and reverse that.
  I think this was bad judgment legally, and I believe it is another 
example of her personal policy views influencing the decisions she made 
as a government official--not the kind of thing you want in a Supreme 
Court Justice.
  Then there was the time she was in the Clinton White House and became 
involved in the great debate we had in the Senate, that went on for a 
period of years, over the partial-birth abortion issue, where unborn 
babies are partially removed from the mother and there are techniques 
used to remove the child's brain. It is a horrible procedure. The 
physicians group, the American College of Obstetricians and 
Gynecologists, ACOG, had issued a finding that there was never any 
medical necessity for this horrible procedure that Senator Daniel 
Patrick Moynihan referred to as so terribly close to infanticide.
  President Clinton apparently was prepared to support a ban on this 
procedure. But Ms. Kagan, as a member of his staff, advised that it 
might be unconstitutional. In her notes from her time at the Clinton 
White House, she said the groups, that is, the pro-abortion groups--the 
groups will go crazy. She even got ACOG to issue a new statement and 
was able to influence President Clinton to oppose the legislation. Six 
or 8 years went by before we finally passed a law banning the 
procedure.
  When I raised this at her hearing, she tried to make it seem like she 
had nothing much to do with it, like she just happened to be in the 
White House. She said, ``at all times trying to ensure that President 
Clinton's views and objectives were carried forward.'' That is all I 
was doing.
  She was asked about that: If that was your view, say so.
  Well, I was just doing whatever the President wanted me to do.
  I do not think that was an accurate analysis of it. Sometime after it 
became clear that ACOG had reversed its position--it caused quite a bit 
of national controversy. She was right at the center of that, 
contacting the leaders of ACOG and prompting them to change the wording 
of their statement without talking to the professionals on the 
committee that had issued the original analysis. There was never any 
need for this kind of procedure to take place. This was concerning to a 
lot of members of the committee. Her testimony is relevant to that.

  With regard to the second amendment, she used the same language in 
her testimony to give the impression that she understood that the 
Heller and the McDonald cases, recently out of Chicago, were settled 
law and implied that if she were on the Court, she would vote to uphold 
the right to keep and bear arms, which is plainly in the Constitution. 
I went back and asked her again. Settled law became mere precedent. 
That precedent is the 5-to-4 decision in two cases, Heller and 
McDonald, where by one vote the Supreme Court is upholding the right to 
keep and bear arms. If one vote were to switch, the Court could rule 5 
to 4 that any city and any State in America could ban completely the 
right to keep and bear arms, violating what I would say are the plain 
words of the Constitution. Her actions, both as a law clerk and in the 
Clinton White House, indicate she has a hostile view to gun ownership. 
She grew up on the upper west side of New York. It is pretty clear she 
is one of a group who sees the NRA as a bad group and does not believe 
in gun ownership as a constitutional right. This is a serious matter 
because it is such a narrowly decided Court.
  Who is this nominee? We will learn more about it as the days go by. I 
believe her actions, her background, and her approach to judging is 
unhealthy. It is not the kind of thing we need on the Supreme Court. It 
evidences a tendency to promote her political agenda rather than being 
objective. Who is she? Vice President Biden's chief of staff, Ron 
Klain, a lawyer with whom she worked closely in the Clinton 
administration and a longtime friend, said of her not long ago:

       Elena is clearly a legal progressive . . . I think Elena is 
     someone who comes from the progressive side of the spectrum. 
     She clerked for judge Mikva

  A renowned Federal activist judge--

     clerked for Justice Marshall--

  One of the most activist Justices on the Supreme Court--

     worked in the Clinton administration, worked in the Obama 
     administration. I don't think there's any mystery to the fact 
     that she is, as I said, more of the progressive role than 
     not.

  What does that mean, a legal progressive? In the early 20th century, 
progressives thought that intellectuals and the elites in this country 
knew more than the great unwashed, and they were seeking to advance 
political agendas that went beyond what a lot of people thought was 
appropriate and constitutional. The progressives saw the Constitution 
as an impediment, not as a protector of our liberties, of our freedom, 
of our prosperity, of our property. They saw it as an impediment to 
getting done what they would like to do. It is a dangerous philosophy.
  Ultimately, all our liberties depend on faithful adherence to the 
Constitution--the free speech, free press, the right to a trial by 
jury. All those things that are so important to our rights are in that 
document.
  This nominee is indeed of that background. She is not sufficiently 
respectful of the plain words of the Constitution. She will be the kind 
of activist judge who seeks to advance her vision of what America 
should be. That is not an appropriate approach for a Justice on the 
Supreme Court to take. That is why I will be opposing the nomination.
  I suggest the absence of a quorum and ask unanimous consent that time 
under the quorum call be charged equally to both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCONNELL. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCONNELL. I will proceed on leader time.