[Congressional Record Volume 156, Number 116 (Tuesday, August 3, 2010)]
[Senate]
[Pages S6598-S6605]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
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.