[Congressional Record Volume 156, Number 116 (Tuesday, August 3, 2010)]
[Senate]
[Pages S6605-S6616]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                                  FMAP

  Madam President, the American people are getting a good reminder this 
week of why they have lost faith in Washington Democrats. Not only is 
one of the last things Democrats plan to vote on here before the August 
recess another bailout, it is also just the kind of bloated, slapdash 
affair Americans have come to expect and to loathe from Democrats in 
Washington. Basically what we are seeing here this week is the final 
act in Washington's guide for responding to a recession.
  On Thursday they threw together a bill without even knowing how much 
it would cost the taxpayers, expecting us to vote on it yesterday. When 
they found out last night it cost more than they thought it would, they 
threw another bill together and expect us to vote on that one 
tomorrow--just before Senators head out of town. This is precisely the 
kind of rushed and reckless approach to lawmaking that has most 
Americans thinking congressional Democrats can't go on their August 
recess fast enough. If it means one less bailout cobbled together 
without regard for details or its impact on the taxpayers or its impact 
on the debt, taxpayers would probably be glad to help book Democrats' 
plane tickets out of here.
  Americans are fed up. They have had enough. The trillion-dollar 
stimulus bill was supposed to be timely, targeted and temporary. Yet 
here we are, a year and a half later, and they are already coming back 
for more. The $100 billion they got for State education budgets the 
first time wasn't enough, even though more than a third of the original 
$100 billion hasn't even been spent yet, and none of the extra money 
they are asking for will necessarily be used to save teachers' jobs. 
The purpose of this bill is clear: it is to create a permanent need for 
future State bailouts, at a time when we can least afford it.
  Same goes for health care spending. The original stimulus included 
about $90 billion in additional Federal Medicaid spending. That too was 
supposed to be temporary. Yet here we are, a year and a half later, and 
they want more.
  So, as I said, the purpose of this bill is clear. It is a last-minute 
effort by

[[Page S6606]]

Democrats in Washington to funnel more money to the public employee 
unions before an election and to set the stage for the massive tax hike 
that the administration plans to spring on America's small business 
owners on January 1 of next year. Once again, Democrats are showering 
money on their favored constituencies and asking the American people to 
pay for it with higher taxes, more government, and fewer private sector 
jobs.
  It is time our friends on the other side actually do something to 
address the jobs crisis in this country. As it is, virtually every bill 
they pass adds more burdens on the very people we need to get us out of 
the recession and create jobs. If a bill doesn't kill jobs or make it 
harder to create them, they are not interested. It is time for a 
different approach. The approach of the past year and a half just is 
not working.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CARDIN. 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. CARDIN. Madam President, let me start by first expressing my 
appreciation to Senator Leahy and Senator Sessions. I have the honor of 
serving on the Judiciary Committee, and I think our leadership--our 
chairman, Senator Leahy, and our ranking Republican member, Senator 
Sessions--conducted the confirmation process in the best tradition of 
the Senate.
  We had 4 days of hearings before the Judiciary Committee. Every 
member of the committee was afforded ample opportunity to question 
Solicitor General Kagan on a far range of issues, and we got complete 
responses. We had chances for followup questions. We even had a third 
round of questioning. We had outside witnesses who were before our 
committee. We had a chance to ask them questions as third-party 
validators. We also went through tens of thousands of pages of 
documents.
  This was a very thorough confirmation process, a very open 
confirmation process, and a very fair confirmation process. I do thank 
Senator Sessions, the ranking Republican member, for the way he 
cooperated with Senator Leahy to make sure the Senate did its business 
in getting a full record before voting to confirm Elena Kagan to be an 
Associate Justice of the Supreme Court of the United States.
  Solicitor General Elena Kagan has the experience, the intelligence, 
the integrity, and the temperament to serve as an Associate Justice of 
the Supreme Court of the United States. As to her experience, she was 
the first woman Solicitor General in the history of our Nation. She was 
the first woman to be dean at the Harvard Law School. Her intelligence 
has been acknowledged by all as to her being a person who is very 
capable to be the next Associate Justice of the Supreme Court.
  Previous Solicitor Generals, including Charles Fried, Ken Starr, Ted 
Olson, and Paul Clement--Democrats and Republicans--stated that Elena 
Kagan would ``bring to the Supreme Court a breadth of experience and a 
history of great accomplishment in the law.'' They are Democratic and 
Republican former Solicitors General.
  She has the integrity. We have seen third-party validators--Democrats 
and Republicans--testify to her integrity and legal career. She 
certainly has the temperament. She put up with the Senators' 
interrogations with a calm demeanor and good humor, which I think will 
serve her well on the Supreme Court of the United States.
  She brings to this position experience from being a clerk for Justice 
Thurgood Marshall. I heard his name mentioned many times during this 
confirmation process. We in Maryland are particularly proud of Thurgood 
Marshall. He comes from the State of Maryland. He comes from Baltimore. 
He was one of the great leaders on the Supreme Court, one of the great 
lawyers of our time. I think we all are very proud of what America is 
today thanks to Justice Thurgood Marshall. I think it only adds to the 
qualifications of Solicitor General Elena Kagan to have clerked for 
Justice Thurgood Marshall.
  I heard my colleague talk about her commitment to our military. Let 
me point this out: This was a very difficult issue for Harvard Law 
School in regard to their policies. But let me quote, if I might, from 
a letter from Iraqi war veterans:

       During her time as dean, she has created an environment 
     that is highly supportive of students who have served in the 
     military. . . .Under her leadership, Harvard Law School has 
     also gone out of its way to highlight our military service. . 
     . .

  Students have complimented the way she acted as dean to support our 
veterans. She comes from a military family. In fact, during the time in 
question, the number of Harvard Law School students who were recruited 
into military service went up. So I think you have to look at the 
record. She has been extremely supportive of our veterans, extremely 
supportive of those who serve our Nation in military service.
  As a last point, let me quote from Miguel Estrada. I think most 
people know Miguel Estrada. He was nominated to the DC Circuit Court of 
Appeals and considered to be one of the conservative nominees. He said:

       If such a person, who has demonstrated great intellect, 
     high accomplishments and an upright life, is not easily 
     confirmable, I fear we will have reached a point where no 
     capable person will readily accept a nomination for judicial 
     service.

  So I would hope we all could agree that Solicitor General Elena Kagan 
is well qualified to serve as an Associate Justice on the Supreme Court 
of the United States.
  What we want from an Associate Justice is a judge who will follow 
legal precedent, giving due deference to Congress, following the best 
traditions of the Supreme Court in protecting the rights of Americans 
against the abuses of power. To me, that is judicial restraint, to stay 
within the mainstream of American values.
  I believe Solicitor General Kagan represents that best tradition of 
following legal precedent, giving due deference to Congress, standing 
for ordinary Americans against the abuse of power. For those reasons, I 
will vote to confirm her to be the next Associate Justice of the 
Supreme Court of the United States.
  During the confirmation hearings, I used that opportunity to explain 
to my constituents, indeed, to the people of this Nation, that Supreme 
Court decisions have real consequences on the lives of our 
constituents. If you are a woman, if you are a consumer, if you are a 
worker, if you are a voter, if you care about the air you breathe or 
the water you drink, you should be very concerned about Supreme Court 
decisions. It affects your life.
  I am very concerned, and I think my constituents are concerned, about 
recent 5-to-4 decisions where the majority, the so-called conservative 
Justices, legislated from the bench on the side of powerful corporate 
interests over protecting ordinary citizens.
  During the confirmation process, I raised these issues and questioned 
Solicitor General Kagan on these cases in which there were 5-to-4 
decisions, which reversed precedents. In my view, they were cases where 
they were legislating from the bench and they were restricting the 
rights of ordinary Americans.
  I mentioned the Ledbetter case. I know the Presiding Officer is very 
familiar with the Ledbetter case, in which a 5-to-4 decision from the 
Supreme Court effectively told the women of our Nation they would have 
no effective rights to bring wage discrimination cases based upon 
gender. The Supreme Court basically said the statute of limitations 
would run even if you did not have knowledge of the discriminatory act. 
Lilly Ledbetter was denied her claim as a result of that decision.
  I think it is going to be healthy for America to have more women on 
the Supreme Court of the United States. When Elena Kagan is confirmed, 
she will, for the first time in America's history, be the third woman 
out of nine on the Supreme Court of the United States. I think that is 
going to give us more commonsense justice in this Nation and certainly 
one that reflects the diversity of our country.
  It was not just the Ledbetter case. There have been other cases in 
which workers have found the Supreme Court has ruled on the side of 
special interest corporate America over the rights of

[[Page S6607]]

ordinary workers. In the Gross case, the Supreme Court reversed 
precedent, here again by a 5-to-4 decision, and ruled that we would use 
a different test for age discrimination, effectively denying claims by 
those who were discriminated against because of their age. This is 
another example where the so-called conservative Justices on the 
Supreme Court reversed precedent, reversed the clear intent of 
Congress, and ruled against workers in favor of corporate America.
  It is not just limited to worker cases or wage cases. In the Citizens 
United case--this is a case we have talked about a great deal on the 
floor--the Supreme Court not only ruled against Congress, because we 
had legislated the McCain-Feingold bill, but ruled against prior 
Supreme Court decisions to reverse the rights of ordinary Americans in 
their election process. What the Citizens United case said is corporate 
America could spend more on elections--not already spending enough, but 
they could spend more. Even though Congress had passed bipartisan laws 
to rein in the amount of special interest corporate money and even 
though other cases were upheld by the Supreme Court, the Supreme Court 
went out of its way, by a 5-to-4 decision, to rule on the side of 
corporate America against ordinary Americans.
  Here, if I might, let me quote from Justice Stevens in his dissent. 
Justice Stevens said:

       Essentially, five Justices were unhappy with the limited 
     nature of case before us, so they changed the case to give 
     themselves an opportunity to change the law . . . there were 
     principled, narrower paths that a Court that was serious 
     about judicial restraint could have taken.

  I agree with Justice Stevens. We all talk about wanting to see 
judicial restraint. We all talk about wanting to see a Supreme Court 
that will give due respect to the actions of Congress. We talk about 
following judicial precedent. We talk about following the tradition to 
protect your constitutional rights. Well, this Supreme Court, too many 
times, by 5-to-4 decisions by the so-called conservative Justices, has 
been the most activist Court on ruling on the side of corporate America 
over ordinary Americans.
  It is also true in environmental cases--the Rapanos case. I have the 
honor of chairing the Water Subcommittee on the Environment and Public 
Works Committee. We work very hard, Congress has worked very hard, to 
protect our environment. It is not easy to get legislation passed in 
the Congress. I know all of us are frustrated that we cannot get more 
legislation passed. But we have gotten some very important bills passed 
to protect our environment, such as the Clean Water Act, and we have 
protected our waterways. The courts have upheld our power to do that.
  But in the Rapanos case, the Court ruled, again, by the narrowest of 
margins, on the side of corporate America against protecting our 
environment, against congressional intent, against prior decisions of 
the Supreme Court, ruling on the side of corporate America over 
protecting our environment for future generations.
  That was also true very recently in the Exxon v. Baker case. This was 
particularly important because it took over a decade for those who were 
damaged by the Exxon Valdez oilspill, by the episode in Alaska, to be 
able to get their claims brought through the courts. The Supreme Court, 
again, by the narrowest margin, reduced the claims of those who were 
damaged as a result of the Exxon Valdez spill.
  I know all of us are very concerned about what is happening in the 
Gulf of Mexico. We want to make sure BP is held fully accountable for 
all the damage it has caused. We in Congress need to do our work to 
make sure that is done. I expect we will get it done. But we also need 
the Supreme Court of the United States to uphold the power of Congress 
to pass laws. We are the legislative branch of government, and too 
often this so-called conservative majority of the Supreme Court has 
ruled the other way.
  I believe Solicitor General Elena Kagan will follow in the best 
traditions of the Supreme Court. She will follow legal precedent, 
allowing Congress to legislate. I say that, in part, because of her 
testimony before our committee. I questioned Solicitor General Kagan as 
to our environmental statutes and the role Congress plays.
  She replied:

       Congress certainly has broad authority under the 
     Constitution to enact legislation involving the protection of 
     our environment. When Congress enacts such legislation, the 
     job of the Court is to construe it consistent with 
     Congressional intent.

  That is the type of Justice I want on the Supreme Court in order to 
protect our air and protect our water, while yielding to Congress to 
pass the statutes rather than legislating from the bench. Basically, I 
want to make sure the next Associate Justice of the Supreme Court is on 
the side of ordinary Americans.
  Once again, let me quote from Solicitor General Kagan from her 
opening statement to the Judiciary Committee. When she was talking 
about equal justice under the law she said:

       It means that everyone who comes before the Court--
     regardless of wealth or power or station--receives the same 
     process and protections . . . What it promises is nothing 
     less than a fair shake for every American.

  That, again, is what I would like to see from the Supreme Court. I 
want them to be on the side of ordinary Americans, giving them a fair 
shake, protecting them from the abuses of power, whether those abuses 
come from the halls of government or from corporate America. In too 
many cases, this Supreme Court, by narrow margins through the more 
conservative Justices, has not been on the side of ordinary Americans. 
I believe Solicitor General Kagan, as Associate Justice Kagan, will 
give Americans a fair shake and will continue in the best traditions of 
the Supreme Court in advancing Americans' rights against the abuses of 
power. For that reason, I intend to vote for the confirmation of Elena 
Kagan to be the next Associate Justice of the Supreme Court of the 
United States.
  With that, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Udall of New Mexico). The clerk will call 
the roll.
  The assistant legislative clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. CARDIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CARDIN. Mr. President, while speaking in support of Solicitor 
General Elena Kagan, I quoted from a letter received from former 
Solicitors General in support of Solicitor General Kagan for the 
position of Associate Justice of the Supreme Court. It is dated June 
22, 2010, signed by former Solicitors General in support of the 
confirmation of Elena Kagan.
  I also spoke about the endorsement received from Miguel Estrada. He 
wrote an extraordinary letter that speaks to the qualifications of 
Solicitor General Elena Kagan for Associate Justice of the Supreme 
Court. It is addressed to the chairman of the committee, Patrick Leahy, 
and the ranking member, Jeff Sessions, dated May 14, 2010.
  I ask unanimous consent these two letters be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                    June 22, 2010.
     Hon. Patrick J. Leahy,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Jeff Sessions,
     Ranking Member, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Chairman Leahy and Senator Sessions: We write to 
     support the nomination of Elena Kagan to be the next 
     Associate Justice of the Supreme Court of the United States. 
     We have served as Solicitors General in the administrations 
     of Presidents Ronald Reagan, George H. W. Bush, William 
     Clinton, and George W. Bush. We support the Kagan nomination 
     in the same spirit of fairness and bipartisanship, and 
     deference to presidential appointments of well-qualified 
     individuals to serve on the Supreme Court, that was also due 
     the nominations of then-Judges John G. Roberts, Jr. and 
     Samuel A. Alito, Jr. to serve on the Supreme Court.
       Elena Kagan would bring to the Supreme Court a breadth of 
     experience and a history of great accomplishment in the law. 
     In addition to her most recent service as Solicitor General, 
     at various points of her career she has served as a law clerk 
     to Supreme Court Justice Thurgood Marshall, she has been in 
     private practice at one of America's leading law firms, she 
     has served in the office of the Counsel to the President, she 
     has been a policy advisor to the President, she has served

[[Page S6608]]

     as a law professor at two of the nation's leading law 
     schools, Harvard and Chicago, and she has served as Dean of 
     the Harvard Law School.
       During the past year, Kagan has honored the finest 
     traditions of the Office of the Solicitor General and has 
     served the government well before the Supreme Court. The job 
     of Solicitor General provides an opportunity to grapple with 
     almost the full gamut of issues that come before the Supreme 
     Court and requires an understanding of the Court's approach 
     to numerous issues from the criteria for certiorari review to 
     the Justices' approach to oral argument. The constant 
     interaction with the Supreme Court that comes with being the 
     most-frequent litigator before the Court also ensures an 
     appreciation for the rhythms and traditions of the Court and 
     its workload. Moreover, as Solicitor General, Kagan had the 
     opportunity to work with the immensely talented career 
     lawyers in the Office of the Solicitor General, who have a 
     deep understanding of and appreciation for the Court. Kagan's 
     most recent experience as Solicitor General will serve her 
     well as she wrestles with the difficult questions that come 
     before the Court.
       The Constitution gives the President broad leeway in 
     fulfilling the enormously important responsibility of 
     determining who to nominate for seat on the Supreme Court of 
     the United States. In that spirit, we support the nomination 
     of Elena Kagan to be Associate Justice and believe that, if 
     confirmed, she will serve on the Court with distinction, as 
     have prior Solicitor Generals who have had that great honor.
           Respectfully,
     Walter Dellinger;
     Theodore B. Olsen
       On behalf of:
     Charles Fried,
       Solicitor General, 1985-1989;
     Kenneth W. Starr,
       Solicitor General, 1989-1993;
     Drew S. Days III,
       Solicitor General, 1993-1996;
     Walter Dellinger,
       Acting Solicitor General, 1996-1997;
     Seth P. Waxman,
       Solicitor General, 1997-2001;
     Theodore B. Olson,
       Solicitor General, 2001-2004;
     Paul Clement,
       Solicitor General, 2004-2008;
     Gregory G. Garre,
       Solicitor General, 2008-2009.
                                  ____



                                  Gibson, Dunn & Crutcher LLP,

                                     Washington, DC, May 14, 2010.
     Hon. Patrick Leahy,
     Chairman, Senate Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Jeff Sessions,
     Ranking Member, Senate Committee on the Judiciary, U.S. 
         Senate, Washington, DC.
     Re: Nomination of Elena Kagan.

       Dear Chairman Leahy and Senator Sessions: I write in 
     support of Elena Kagan's confirmation as an Associate Justice 
     of the Supreme Court of the United States. I have known Elena 
     for 27 years. We met as first-year law students at Harvard, 
     where we were assigned seats next to each other for our 
     classes. We were later colleagues as editors of the Law 
     Review and as law clerks to different Supreme Court Justices; 
     and we have been friends since.
       Elena possesses a formidable intellect, an exemplary 
     temperament and a rare ability to disagree with others 
     without being disagreeable. She is calm under fire and mature 
     and deliberate in her judgments. Elena would also bring to 
     the Court a wealth of experience at the highest levels of our 
     government and of academia, including teaching at the 
     University of Chicago, serving as the Dean of the Harvard Law 
     School and experience at the White House and as the current 
     Solicitor General of the United States. If such a person, who 
     has demonstrated great intellect, high accomplishments and an 
     upright life, is not easily confirmable, I fear we will have 
     reached a point where no capable person will readily accept a 
     nomination for judicial service.
       I appreciate that considerations of this type are 
     frequently extolled but rarely honored by one side or the 
     other when the opposing party holds the White House. I was 
     dismayed to watch the confirmation hearings for then-Judge 
     Alito, at the time one of our most distinguished appellate 
     judges, and find that they ranged from the anodyne and 
     uninformative to the utterly disgraceful. And one could 
     readily identify members of the current Senate majority, 
     including several who serve on the Judiciary Committee, who, 
     when they previously assessed the judicial nominees of the 
     other party, earnestly articulated many of the same 
     objections that doubtless will be raised against Elena (such 
     as a lack of judicial experience, a perceived absence of a 
     ``paper trail,'' or whether the nominee's views truly are in 
     the legal mainstream). I respectfully submit that it brings 
     no credit to our government, and risks affirmative harm to 
     our courts, when our elected representatives simply swap 
     talking points--emphasizing the same considerations they 
     previously minimized or derided--only to revert to their 
     former arguments as soon as electoral fortunes turn.
       Lest my endorsement of Elena's nomination erode the support 
     she should receive from her own party, I should make clear 
     that I believe her views on the subjects that are relevant to 
     her pending nomination--including the scope of the judicial 
     role, interpretive approaches to the procedural and 
     substantive law, and the balance of powers among the various 
     institutions of government--are as firmly center-left as my 
     own are center-right. If Elena is confirmed, I would expect 
     her rulings to fall well within the mainstream of current 
     legal thought, although on the side of what is popularly 
     conceived of as ``progressive.'' This should come as a 
     surprise to exactly no one: One of the prerogatives of the 
     President under our Constitution is to nominate high federal 
     officers, including judges, who share his (or her) governing 
     philosophies. As has often been said, though rarely by 
     senators whose party did not control the White House at the 
     time, elections have consequences.
       Elena Kagan is an impeccably qualified nominee. Like Louis 
     Brandeis, Felix Frankfurter, Robert Jackson, Byron White, 
     Lewis Powell and William Rehnquist--none of whom arrived at 
     the Court with prior judicial service--she could become one 
     of our great Justices. I strongly urge you to confirm her 
     nomination without delay.
           Very truly yours,
                                                Miguel A. Estrada.

  Mr. CARDIN. Mr. President, 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.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. Mr. President, I rise to speak in support of the 
nomination of Elena Kagan to be an Associate Justice on the Supreme 
Court.
  Having served on the Senate Judiciary Committee now for 17 years, I 
have seen the impact that new Justices have on the Court, and I 
strongly believe these votes are among the most important we cast in 
this Chamber.
  There is no question that the confirmation process has become heated 
in recent years. Outside interest groups and the 24-hour news cycle 
have placed far too much emphasis on sound bites, half truths, and 
hyperbole. But none of this should obscure the fact that these are, in 
fact, important votes because the stakes are high.
  A Supreme Court Justice, once confirmed, will serve a life 
appointment on a Court that is truly foundational to our democratic 
system.
  For over 200 years, our independent judiciary has served as a model 
to the world. We have watched as other countries have struggled with 
courts that have become beholden to political pressures or fallen 
subject to corruption.
  I think of Pakistan, where in 2007 President Musharraf proclaimed a 
state of emergency and used it to suspend the country's constitution 
and remove justices from the supreme court; or Mexico, where corruption 
is so bad that in 2008 President Calderon called for a fundamental 
redesign of the entire judicial system.
  In the United States we have guarded our judiciary, and it has served 
us well. Our Supreme Court has acted as a true check on government 
abuses, as a reliable and impartial tribunal for the resolution of 
private disputes, and as a final arbiter where the American people can 
come to seek protection of their fundamental constitutional rights.
  As Justice Breyer said in a recent public address, the virtue is that 
``a country of 300 million very diverse people will resolve their 
differences under law and not with guns on the street or through 
riots.''
  In the context of world history, this is most impressive.
  When it comes to the Supreme Court, nominations merit careful 
attention as well because any one Justice can have a substantial effect 
on the Court's rulings.
  The cases that reach the Supreme Court are not easy ones. When the 
law is clear, a case is settled by the parties or resolved by the 
district courts or the courts of appeal. It is when the law is open to 
multiple interpretations or when constitutional values must be weighed 
against each other that a case is likely to reach the Supreme Court.
  In these cases, decisions are not automatic. Instead, each of the 
nine Justices must examine the facts, study

[[Page S6609]]

the law, and reach his or her best conclusion about what the law 
requires. The Court's rulings stand not just as abstract statements for 
the law books but binding decisions with lasting impact on the lives of 
the American people.
  There are examples in the newspaper every day. In 2005, the Justices 
held that a school district in Seattle had violated the equal 
protection clause by using race as one of a series of factors in 
assigning students to schools within that district. The real impact of 
this will be to make it far more difficult for school administrators to 
maintain racial diversity in our public schools.
  Another example: In a recent antitrust case--Leegin Creative Leather 
Products v. PSKS--the Justices put forth a new interpretation of the 
law that will allow manufacturers to set minimum prices for certain 
products. What this means for Americans is, when they go to the store, 
they may find that a particular electronic device or even a shampoo has 
the same price at every store and can never be put on sale. Legislation 
to overturn this decision is still pending before the Senate.
  In each of these cases, Justices were divided on the law. Five 
Justices agreed on the Court's ruling, but the remaining four Justices 
dissented and explained in vehement terms why they disagreed with their 
colleagues' reasoning and result. The decisions, in other words, were 
not formulaic.

  So when I undertake my constitutional role of providing advice and 
consent, I do so with the understanding that every nominee to the Court 
is not the same, and each and every one could have a lasting impact on 
the future of our country.
  With this in mind, I am very pleased to support the nomination of 
Elena Kagan to be the next Associate Justice of the United States 
Supreme Court.
  Look at her professional record. Summa cum laude and Phi Beta Kappa 
from Princeton; a master's degree in philosophy from Oxford University; 
magna cum laude from Harvard Law School; a supervising editor of the 
Harvard Law Review; legal clerkships with U.S. Circuit Court Judge 
Abner Mikva and Supreme Court Justice Thurgood Marshall; two years at 
the law firm of Williams and Connolly; a professor of constitutional 
and administrative law at the University of Chicago; a special counsel 
to the Senate Judiciary Committee for the nomination of Justice Ruth 
Bader Ginsburg; an associate White House counsel to President Clinton; 
the deputy director of President Clinton's Domestic Policy Council; a 
professor at Harvard Law School; the first woman dean of Harvard Law 
School; the first woman to ever serve as the Solicitor General of the 
United States.
  That is an amazing background. You would think she is 106 instead of 
a very young woman.
  It is easy to see why her name has so often appeared on short lists 
for the Supreme Court. She is a woman of repeated firsts. If confirmed, 
she will be the fourth--not the first--woman to sit on the Supreme 
Court.
  Frankly, I have been surprised to hear some of my colleagues question 
Elena Kagan's credentials for the Court.
  Let me start with the argument made by some that her record is 
somehow inadequate because she lacks prior judicial experience.
  It is true that all nine Justices on the current Supreme Court come 
directly from the U.S. Court of Appeals. But that is a historic 
anomaly. It has never happened before. In fact, in the history of the 
Court, approximately one-third of our Justices have come to the bench 
with no prior experience as a judge.
  When the President announced this nominee, Justice Scalia, for one, 
said he was happy to see that she is not a Federal judge and not a 
judge at all. Justice Felix Frankfurter went much further, stating in a 
speech in 1957:

       One is entitled to say, without qualification, that the 
     correlation between prior judicial experience and fitness for 
     the functions of a Supreme Court is zero. The significance of 
     the greatest among the justices who have had such experience, 
     Holmes and Cardozo, derived not from that judicial 
     experience, but from the fact they were Holmes and Cardozo.

  In my own view, judicial experience is a useful background, but it is 
only one of many, and it is a background that is well represented on 
the Court today. As a matter of fact, it is entirely represented on the 
Court today.
  The point is this: When we examine Elena Kagan's records, we should 
not allow the characteristics of the current Court to make us 
shortsighted. In the course of American history, the Senate has 
confirmed Justices with a broad variety of backgrounds--Justices who 
were law professors, such as Felix Frankfurter; attorneys in private 
practice, such as Warren Burger; elected officials, such as John 
McKinley, Earl Warren, and James Byrnes; and over 10 percent of our 
Justices have--like Elena Kagan--come directly from the executive 
branch, with no judicial experience in between. These include Chief 
Justice William Rehnquist, who was Assistant Attorney General; Justice 
Byron White, who was Deputy Attorney General; Justice Robert Jackson 
and Chief Justice Harlan Fiske Stone, who were both the Attorney 
General of the United States; and Chief Justice John Marshall, who was 
the Secretary of State.
  Again, these are Justices who distinguished themselves on the Court, 
who came directly from the political experience. In my mind, the 
President has made a wise choice with this nomination because, in 
addition to this woman's impressive brain power--and I sat there and 
listened to her hour after hour keep her calm, show humor, and display 
an impressive ability to cite cases, and even footnotes of those 
cases--she brings the valuable attribute of having first-hand working 
knowledge of all three branches of government. If confirmed, she, 
Justice Breyer, and Justice Thomas, will be the only Justices to share 
that distinction.
  Take her experience with the Supreme Court itself. As a ``27-year-old 
pipsqueak,'' as she said before the committee, Elena Kagan had the 
privilege of working as a law clerk on the Supreme Court to Justice 
Thurgood Marshall. The job itself is prestigious, and it is impressive 
that Kagan was selected. The real value, however, was in giving Kagan 
an inside view of the Court through the eyes of one of our great 
Justices, the lawyer who argued Brown v. Board of Education, the first 
African-American Justice on the Supreme Court, and a man who brought to 
life the Court's most basic promise of ``equal justice under law.'' She 
had that experience.
  As Elena Kagan said at her confirmation hearing, through Justice 
Marshall, she learned that our courts are ``special as compared with 
other branches of government. In other words, that it is the courts' 
role to make sure that even when people have no place else to go, they 
can come to the courts and the courts will hear their claim fairly. 
That is a valuable lesson indeed for both a young lawyer and a new 
Supreme Court Associate Justice.''
  Today, Kagan has an equally unique perspective on the Court. As the 
Solicitor General, she sometimes is referred to as the ``tenth 
justice,'' because there is no other lawyer who interacts as frequently 
with the Justices. In her time as Solicitor General, she has filed 
hundreds of briefs and argued six cases before the Supreme Court 
itself. If confirmed, she will be one of only five sitting Justices who 
have appeared on the advocate's side of the Supreme Court bench.
  Solicitor General Kagan also brings practical experience with the 
legislative branch. She worked in the halls of the Senate as a special 
counsel to the Senate Judiciary Committee for the Ginsburg nomination, 
and during the Clinton administration, she bore responsibility for 
advancing President Clinton's domestic policy agenda as the Deputy 
Director of the Domestic Policy Council. She served, for example, as 
the administration's chief negotiator for tobacco reform legislation. 
So she knows the ins and outs of the legislative process.
  This position enabled her to experience firsthand the hard work, 
negotiation, collaboration, and navigation of procedural obstacles that 
are required to move a difficult bill through Congress.
  When the Justices are called upon to interpret a statute, or 
determine its constitutionality, it is essential that they have some 
appreciation for the process by which that law came to be and the 
intent of Congress in writing and shaping that law. Elena Kagan knows 
the legislative process, and I believe that will serve our Nation well.

[[Page S6610]]

  Finally, Elena Kagan also brings experience as a participant in the 
executive branch. As the Solicitor General, she has represented the 
U.S. Government before the Supreme Court; as an associate White House 
counsel, she had to advise President Clinton on the scope of 
Presidential powers and privileges; and as a Deputy Director of the 
Domestic Policy Council, she supervised the President's policy 
initiatives not only by advancing legislation in Congress but also in 
cooperation with Federal agencies.
  Already, the debate has begun among legal commentators about whether 
Kagan's work on the executive branch will skew her rulings in key 
cases--we heard this earlier this morning--dealing with the scope of 
the President's powers with respect to indefinite detention, 
warrantless surveillance, or the use of force outside of a declaration 
of war.
  The lessons of history again provide perspective here. I think of 
Justice Robert Jackson, a former Attorney General of the United States, 
who wrote an opinion that now stands as the cornerstone for all 
analysis--and I mean that--of limits on executive power. We have heard 
this quoted by virtually every nominee before the Judiciary Committee 
when a question of executive power is levied.
  In the famous Youngstown case, in 1952, the Court was called upon to 
decide whether the President's authority as Commander in Chief allowed 
him to seize the Nation's steel mills in order to ensure sufficient 
wartime production to meet the Defense Department's needs for the 
Korean war.
  In his prior role as the Attorney General of the United States, 
Robert Jackson had vigorously defended the President's prerogative to 
take steps necessary to advance the Nation's war effort. But as Justice 
Jackson, he took a different tack. He agreed with the majority that the 
President did not have the authority to seize the private steel mills, 
but in doing so, he set forth a compromise framework, stating that the 
President's power was greatest when he acted pursuant to an act of 
Congress, in a zone of ``twilight'' when the Congress has not spoken, 
and at its lowest ebb, when he acted contrary to the stated will of the 
Congress.
  When a colleague pointed out that Justice Jackson's compromise 
framework differed from the position he had taken as Attorney General, 
he replied that a Justice does not ``bind present judicial judgment by 
earlier partisan advocacy.'' That is a very profound statement from a 
great Justice, who wrote an opinion that has stood the test of time.
  I tell this story to make this point: Elena Kagan's clerkship for 
Justice Marshall, her work with the Congress in the 1990s, and the 
positions she takes now as Solicitor General cannot forecast, with any 
certainty, what results she will reach in cases before the Court. I 
think Justice Jackson is living proof of that. However, they do provide 
important assurance that she will appreciate the core principles and 
perspectives that undergird the work of each and every branch of this 
government. Like Justice Jackson, this has the potential to make her a 
very persuasive and impressive Justice.

  In sum, I believe Elena Kagan's professional background makes her 
superbly qualified to sit on the Supreme Court.
  An excellent professional background is, of course, a necessary 
qualification, but a nominee must also show that he or she has the 
appropriate judicial temperament, has a commitment to follow the law, 
and brings a judicial philosophy that will not pull the Court outside 
of the mainstream. And I have confidence in her in each of these areas.
  The Senate Judiciary Committee has received over 170,000 pages of 
documents spanning Kagan's entire career. She testified before us for 
18 hours over a space of 3 days. She has answered over 200 additional 
questions for the record, and scores of letters have been sent to us 
regarding her qualifications. What repeatedly emerges from all of this 
is that Elena Kagan is a pragmatist, a problem-solver, and a 
conciliator.
  Her time as dean of Harvard Law School--misinterpreted often--paints 
a vivid picture. Elena Kagan arrived at Harvard in 1999. She was 
selected to be dean only 4 years later. She was the first woman ever 
named so--a significant accomplishment in itself.
  What is most important, however, is that during her time at Harvard, 
she developed a reputation as a steady leader who would bring all sides 
to the table and work to solve a problem. As described in a letter from 
69 former deans supporting her nomination, she had a unique 
``willingness to listen to diverse viewpoints and give them all serious 
consideration. She revealed a strong and consistent aptitude for 
forging coalitions that achieved smart and sensible solutions, often in 
the face of seemingly insoluble conflict.'' Quite a statement from 69 
deans of law schools.
  She brought conservative faculty, such as Bush administration lawyer 
Jack Goldsmith, to the school and rallied the faculty to come together 
to support them. Former Solicitor General Charles Fried described her 
effect this way: ``The place is like it's never been before.'' She 
``managed to calm the factionalism, so it's completely disappeared.'' 
That is according to former Solicitor General Charles Fried. The Boston 
Globe stated it more simply, saying that she ``thawed Harvard law.''
  This same knack for the pragmatic and drive toward consensus echoes 
throughout her career.
  A liberal scholar from the University of Chicago has characterized 
her academic work this way:

       She is much more of a lawyer than a partisan. She is more 
     interested as a scholar in thinking through hard issues than 
     advocating particular ideological or political perspectives.

  Former Clinton Chief of Staff John Podesta has written that during 
the Clinton administration, Kagan ``distinguished herself as deeply 
loyal to the Constitution and the law'' and said that ``on issues 
ranging from adoption to religious freedom to tobacco regulation, [she] 
eschewed ideology in favor of practical solutions.''
  Her friends, her admirers, her colleagues repeatedly describe her in 
those terms: a problem-solver, a conciliator, someone who brings people 
together even when they have very different views.
  What really impresses me, though, is what we have heard from 
conservatives. Let me note that the very fact we have heard from these 
conservatives is impressive. In today's political atmosphere, lawyers 
take a risk when they cross party lines to support Supreme Court 
nominees. Key people have done so for Kagan.
  Former Bush appointee to the Tenth Circuit and current Stanford law 
professor Michael McConnell sent us an 8-page letter outlining the 
reasons for his strong support for Kagan's nomination. Elena Kagan, he 
said, shows ``respect for opposing argument, fairmindedness, and 
willingness to reach across ideologic divides, independence, and 
courage to buck the norm.'' ``No one,'' he said, ``can foresee the 
future, but I would not be surprised to find that Elena Kagan, as a 
Justice, serves more as a bridge between the factions of the Court than 
as a reliably progressive vote.''
  Senator Graham, my colleague on the committee, has pointed to the 
words of Miguel Estrada, a deeply conservative lawyer who has known 
Kagan for 27 years. He describes her as having ``a formidable 
intellect, an exemplary temperament, and a rare ability to disagree 
with others without being disagreeable. She is calm under fire and 
mature and deliberate in her judgments.''
  Today, we have a divided Court--a Court in which the Justices are 
repeatedly split five to four on major rulings of the day. These 
rulings determine what kinds of gun laws legislatures can pass to 
protect the public safety in our cities, how much money will be spent 
in Federal elections, what school districts can and cannot do to 
maintain racial diversity in our schools, what remedy our older and 
women workers have when their employers discriminate against them, what 
the appropriate role for religion is in our public life, or how much a 
company can be required to pay for causing significant harm to our 
environment. And these Justices are split down the middle on these 
major questions. They cannot find compromise or agreement. Major 
questions of the day are adjudicated on a bare majority.
  We badly need a Justice who can drive this Court toward consensus, 
and

[[Page S6611]]

I have high hopes Elena Kagan will be just such a Justice.
  Her record also gives me confidence that she will follow the law and 
put aside any personal policy preference when deciding cases on the 
Court. In the course of her career, whether working on policy or on 
law, law has always come first. And as Solicitor General, she has 
proven quite clearly that she can put her personal views aside, filing, 
for example, a brief that defended the constitutionality of don't ask, 
don't tell. Although she is known to strongly disagree with that 
policy, she defended it and stated that the Court should let stand a 
First Circuit decision that upheld the policy because it properly 
deferred to the reasoned military judgment of the executive and 
legislative branches.
  Finally, I believe she has set forth an appropriate judicial 
philosophy. In 3 days of hearings before our committee, she has 
revealed herself as a person who believes that judges should follow 
precedent, stare decisis, and exercise restraint in their rulings. She 
said:

       [N]o judge should look at a case and say, ``Oh, I would 
     have decided it differently; I'm going to decide it 
     differently.'' [A] judge should view prior decisions with a 
     great deal of humility and deference.

  She told us:

       The time I spent in the other branches of government remind 
     me that [the role of the Court] must also be a modest one--
     properly deferential to the decisions of the American people 
     and their elected representatives.

  Hers will be a welcome voice on the Court.
  I wish to take one last moment, if I may, to address questions about 
her actions related to military recruiting at Harvard Law School 
because I believe, to some extent, they have been inaccurately 
depicted. While each Member will have to draw his or her own 
conclusions about whether Dean Kagan took the wisest course, I believe 
it is essential that we get the facts straight.
  As dean, Elena Kagan never barred military recruiters from the 
Harvard Law School campus. For one semester, after the U.S. Court of 
Appeals for the Third Circuit held that the Solomon amendment was 
unconstitutional, Kagan reverted to an earlier school policy that had 
been used for many years before she became dean. That is fact. Under 
that policy, the military recruited through the Harvard Law School 
Veterans Association but was excluded from the Office of Career 
Services. At all times, the military had access to students. In fact, 
military recruitment levels at Harvard remained steady and even 
increased at times during Kagan's tenure as dean.
  But what is most striking to me in reviewing all of this is that 
although the judiciary has heard from servicemembers on both sides of 
this issue, every report we have received from a veteran or 
servicemember who actually attended Harvard at the time has been in 
strong support of Kagan's nomination to the Court.
  Marine Corps CPT Bob Merrill graduated from Harvard Law School in 
2008. He is currently serving in Afghanistan. He writes:

       Kagan's positions never affected the services' ability to 
     recruit at Harvard. Behind the scenes the dean assured that 
     our tiny Harvard Law School Veterans Association never lacked 
     for funds or access to facilities.
       She treated the veterans at Harvard like VIPs, and she was 
     a fervent advocate of our veterans association.

  First Lieutenant David Tressler graduated from Harvard Law School in 
2007 and is currently serving in Afghanistan with the U.S. Army 
Reserves. He wrote that ``while Dean of Harvard Law School, [Kagan] 
adequately proved her support for those who had served, were currently 
serving, and all those who felt called to serve.''
  Navy Judge Advocate General Corps LT Zachary Prager graduated in 2006 
and wrote that ``Dean Kagan set a standard at Harvard of respect for 
military servicemembers'' and that without Kagan's ``leadership and 
evenhandedness as Dean,'' he would not have joined the military.
  Like Admiral Mike Mullen, Secretary of Defense Robert Gates, 
Secretary of the Navy Ray Maybus, retired General Colin Powell, myself, 
and many others in this Chamber, Kagan has said she personally 
disagrees with the don't ask, don't tell policy. And she is not alone.
  At certain dark moments in our history, institutions of higher 
education have shown a hostility in this sense, but those contexts 
should not be confused.
  To oppose the exclusionary policy of don't ask, don't tell is not to 
oppose or show hostility toward the military; it is instead to say that 
the time has come for all willing and able Americans to be able to 
serve. Like Elena Kagan, I strongly believe the criteria for military 
service in our country should be competence, courage, and a willingness 
to serve, not race, gender, or sexual orientation.
  Members should draw their own conclusions about whether Kagan made 
the right choice as dean in returning to Harvard's old recruiting 
policy in 2005, but I want to be clear that nothing in her record shows 
any hostility toward the military or the men and women who serve our 
country. In fact, servicemen and women who were there at the time have 
come forward, and the evidence is to the contrary.
  In sum, and in conclusion, I believe Elena Kagan will be a fine 
Justice on the U.S. Supreme Court, and I look forward to the day soon 
when she takes her seat as the fourth woman in history to serve on that 
Court. I am very proud to support her nomination.
  I thank the Chair, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona is recognized.
  Mr. KYL. Mr. President, Elena Kagan is intelligent, well spoken, 
personable, and schooled in the law. She is skilled in the art of 
argument, perhaps to a fault. Ignoring her own advice in the now famous 
University of Chicago Law Review article, she did not testify 
meaningfully before the Judiciary Committee, concealing and disguising 
her views and playing the same game of ``hide the ball'' as some who 
went before her, albeit with more skill. Probably because she 
criticized the practice so directly, many expected her to set a 
different standard.
  Others have asked whether Judiciary Committee hearings have been 
rendered largely free of substance and what, if anything, can be done 
about it. The former Judiciary Committee chairman, Arlen Specter, who 
lamented that Ms. Kagan, during her testimony, had not ``answered much 
of anything,'' went on to say this:

       It would be my hope that we could find some place between 
     voting no and having some sort of substantive answers. But I 
     think we are searching for a way how Senators can succeed in 
     getting substantive answers, as you advocated in the Chicago 
     Law Review, short of voting no.

  I confess that, similar to Senator Specter, I don't know how we can 
force nominees to be forthcoming except through our votes.
  To be clear, my threshold for supporting a nominee does not require 
answering how one would vote on issues sure to come before the Court, 
nor necessarily expressing agreement or disagreement with decisions or 
Court opinions. It is possible to learn much about a nominee's approach 
to judging without committing one to a specific position in future 
cases. What we should expect, however, is candor and a willingness to 
honestly discuss background and general constitutional principles, 
approaches to judging and writings and matters within the nominee's 
background that bear on the nominee's suitability for the bench.
  In explaining why I could not vote for now-Justice Sotomayor, I said 
I thought she was disingenuous with the Judiciary Committee. Obviously, 
reaching such a conclusion precludes support, notwithstanding other 
qualifications for the position. Reluctantly, after analysis of her 
testimony, weighed with her past writings, statements, and actions, I 
have reached the same conclusion regarding Elena Kagan.
  Exhibit A is her insistence on redefining her position on military 
recruiting on Harvard campus. Her ``separate but equal'' defense and 
attempt to downplay the steps she took to undermine the legal policy of 
don't ask, don't tell were, ultimately, unbelievable. It is almost 
unfathomable, for example, that someone with Ms. Kagan's considerable 
legal acumen could have, as she asserted, always thought we were acting 
in compliance with the Solomon amendment.
  Ms. Kagan tried to convince the Judiciary Committee that her actions 
against the military were a justifiable response to a policy she viewed 
as discriminating against homosexuals. But

[[Page S6612]]

as Senator Sessions noted, her stand against homosexual discrimination 
was not universal. She did not speak out, for example, when Harvard 
accepted $20 million from a member of the Saudi royal family to 
establish a center for the study of Sharia law, even though under 
Sharia law ``sexual activity between two persons of the same gender is 
punishable by death or flogging.'' Her decision to punish the military 
for a policy adopted by Congress is especially perplexing, given her 
failure to express concern over or take action against the 
establishment of a center to promote a legal system linked to the abuse 
of homosexuals, women, and others.
  Exhibit B is her astonishing legal definition of what she meant in 
her effusive praise for Justice Marshall's vision of the role of the 
Court, presumably to avoid the obvious conclusion that she agreed with 
his activist approach to judging. Justice Marshall had an enormous 
influence on our jurisprudence, starting with his advocacy before--and 
most especially with--Brown v. Board of Education. But no serious 
student would argue that he didn't try to push the law as far as he 
could in furtherance of his philosophy.
  Indeed, consider the comments of another former Marshall clerk, 
liberal law professor Cass Sunstein, who now serves in the Obama 
administration, who has said this:

       A serious commitment to Marshall's vision of constitutional 
     liberty would entail an extraordinary judicial role, one for 
     which courts are quite ill suited.

  He has also acknowledged:

       Even if the best substantive theory calls for something 
     like Marshall's vision, institutional considerations would 
     argue powerfully against it.

  Ms. Kagan's attempt to define Justice Marshall's philosophy as 
meaning only that he wanted everyone to have equal access to the courts 
is--there is no other word for it--disingenuous.
  Because Ms. Kagan apparently embraces his philosophy but feared 
public acknowledgment of that would confirm the concern that she would 
be a results-oriented judge, she fudged. In doing so, she confirmed the 
suspicion and compounded the problem with deceptive testimony.
  Exhibit C is the explanation of several of her bench memos to Justice 
Marshall, insisting they did not contain her views but were merely a 
channeling of his. Ms. Kagan offered this explanation of her memo 
categorizing litigants as ``good guys'' and ``bad guys,'' another memo 
stating that the government was ``for once on the side of the angels,'' 
and a memo expressing fear that the Court might ``create some very bad 
law on abortion and/or prisoners' rights.'' Reading these memos, one 
gets the sense that Ms. Kagan was not simply channeling her boss but 
was instead expressing her own personal policy views on matters before 
the Court and that they had as much to do with who the litigants were 
as what the issues were.
  Ms. Kagan also attempted to recast her praise of Israeli Supreme 
Court Justice Aharon Barak, who, in the words of the Associated Press, 
is widely acknowledged as someone who took an activist approach to 
judging. Well, that is exhibit D. Judge Richard Posner described Judge 
Barak's history on the Israeli Supreme Court as ``creating a degree of 
judicial power undreamed of even by our most aggressive Supreme Court 
justices.''
  Under his leadership, the Israeli Supreme Court aggrandized its own 
power far beyond what even many of those on the left would view as 
acceptable in America. To cite one example of Justice Barak's judicial 
philosophy, he wrote a judge's role ``is not restricted to adjudicating 
disputes in which parties claim that their personal rights have been 
violated'' but rather ``to bridge the gap between law and society.''
  Well, bridging gaps, clearly, and using the law to address societal 
problems is not the job of the courts. That is a political approach.
  Ms. Kagan claimed, during her hearing, that her praise for Justice 
Barak had nothing to do with his leftwing judicial philosophy. But an 
examination of her statements tells a different story. In 2002, Ms. 
Kagan praised Aharon Barak for ``presiding over the development of one 
of the most principled legal systems in the world.''
  In 2006, she again heaped professional praise on Justice Barak, 
calling him her ``judicial hero.'' Ed Whelan, who is a noted legal 
commentator, summarized this event well:

       Kagan begins by referring to the portraits of four ``great 
     justices'' with whom Harvard Law School has been associated--
     Brandeis, Holmes, Brennan, and Frankfurter. But, she says, 
     ``the Harvard Law School association of which I'm most 
     proud''--more proud, that is, than of the associations with 
     Brandeis, Holmes, Brennan, or Frankfurter--``is the one we 
     have with President Barak of the Israeli Supreme Court.

  And then she continued:

       I told President Barak, and I want to repeat in public, 
     that he is my judicial hero. He is the judge or justice in my 
     lifetime whom [sic], I think, best represents and has best 
     advanced the values of democracy and human rights, of the 
     rule of law and of justice.

  During her confirmation hearing, Ms. Kagan, under oath, testified 
that she admired Justice Barak for his role in:

       . . . creating an independent judiciary for Israel. . . . 
     not for his particular judicial philosophy, not for any of 
     his particular decisions.

  That testimony cannot be squared with her public declaration that 
Justice Barak ``is the judge or justice in my lifetime whom [sic], I 
think, best represents and has best advanced the values of democracy 
and human rights, of the rule of law and of justice.''
  Exhibit E is Ms. Kagan's answer to whether she is a legal 
progressive. Her statements, again, were designed to cloud her views. 
Vice President Biden's Chief of Staff, Ron Klain--who served as chief 
counsel of the Senate Judiciary Committee, Chief of Staff to Attorney 
General Reno, and Chief of Staff to Vice President Gore--has known Ms. 
Kagan as far back as 1993, when they worked together on the Ginsburg 
hearings. At Ms. Kagan's hearing, Senator Sessions pointed out that 
after Ms. Kagan was nominated, Mr. Klain said:

       Elena [Kagan] is clearly a legal progressive. I think Elena 
     is someone who comes from the progressive side of the 
     spectrum. She clerked for Judge Mikva, clerked for Justice 
     Marshall, worked in the Clinton administration, worked in the 
     Obama administration. I don't think there's any mystery of 
     the fact that she is, as I said, of more of the progressive 
     role than not.

  Senator Sessions then asked Ms. Kagan:

       Do you agree with the characterization that you're a legal 
     progressive?

  She replied:

       I honestly don't know what that label means.

  So Senator Sessions pressed Ms. Kagan:

       I'm asking about his firm statement that you are a legal 
     progressive, which means something. I think he knew what he 
     was talking about. He's a skilled lawyer who's been in the 
     midst of the great debates of this country about law and 
     politics, just as you have. And so I ask you again: Do you 
     think that is a fair characterization of your views? 
     Certainly, you don't think he was attempting to embarrass you 
     or hurt you in that process.

  She again dodged with an answer that strains credulity.

       I love my good friend, Ron Klain, but I guess I think that 
     people should be allowed to label themselves. And that's--you 
     know, I don't know what that label means and so I guess I'm 
     not going to characterize it one way or the other.

  So a nominee to the highest Court in the land and a former dean of 
one of the Nation's most prestigious law schools insists that she 
doesn't know what the term ``legal progressive'' means.
  But later in the hearing, Senator Graham mentioned that Greg Craig, 
President Obama's first White House Counsel, had praised Ms. Kagan. Mr. 
Craig said:

       [Elena Kagan] is largely a progressive in the mold of Obama 
     himself.

  So Senator Graham asked:

       Would you consider them, your political views, progressive?

  Then Ms. Kagan acknowledged that, yes, her ``political views are 
generally progressive.''
  It is hard to believe Ms. Kagan knows what a political progressive is 
but not a legal progressive.
  Exhibit F: Her attempt to redefine her views in the letter sent to 
Judiciary Committee on November 14, 2005, in which she objected to the 
Graham-Kyl-Cornyn amendment dealing with treatment of enemy detainees. 
Her characterization of our approach as being similar to the 
``fundamentally lawless'' actions of ``dictatorships'' was clearly, I 
believe, injudicious and revealed the fervor of her position, much like 
her

[[Page S6613]]

characterization of the don't ask, don't tell policy as ``a moral 
injustice of the first order,'' and it could suggest a viewpoint that 
she would have a hard time laying aside if similar questions ever came 
before her as a Supreme Court Justice.
  Her attempt to distance herself from the obvious application of her 
views to places other than Gitmo--obvious because her letter bemoaned 
the ``serious and disturbing reports of the abuse of prisoners in 
Guantanamo, Iraq and Afghanistan''--and issues other than conviction 
and sentencing--even though her letter stated that our amendment 
``unfortunately'' would ``prohibit challenges to detention practices, 
treatment of prisoners, adjudications of their guilt and their 
punishment''--suggests either that she was uncomfortable defending her 
position or she wanted to preserve her right to sit on such cases in 
the future or both. The attempt to obscure positions she had previously 
stated was, I believe, an attempt to run away from those positions and 
mislead the committee.
  Exhibit G: Ms. Kagan's doublespeak on the question of same-sex 
marriage. Prior to her confirmation as Solicitor General, when she was 
not restricted, as judicial nominees are, in her ability to comment on 
issues that may come before the courts, Senator Cornyn asked Ms. Kagan 
a direct question about her personal views:

       Do you believe that there is a fundamental constitutional 
     right to same-sex marriage?

  Her answer then seemed clear. She wrote:

       There is no Federal constitutional right to same-sex 
     marriage.

  But at the hearing, when I asked Ms. Kagan to confirm her views on 
this subject, she distorted both Senator Cornyn's question and her 
answer. She told me Senator Cornyn had asked whether she could 
``perform the role of the Solicitor General'' and vigorously defend 
DOMA, given her opposition to don't ask, don't tell. When I pointed out 
that Senator Cornyn's question was about a constitutional right to 
same-sex marriage, not DOMA, Ms. Kagan then asserted that her answer to 
Senator Cornyn--that ``there is no Federal constitutional right to 
same-sex marriage''--intended to convey that she ``understood the state 
of the law and accepted the state of the law.'' Having reinterpreted 
her previous answer, she then told me that, as a Supreme Court nominee, 
it would not be ``appropriate'' for her to share her personal views on 
the subject, since such a case may come before the Court.
  It strikes me that Ms. Kagan was, at the time of her nomination to be 
Solicitor General, trying to create an impression--apparently a false 
one--that she did not personally believe the Constitution could be read 
to include a right to same-sex marriage.
  That leads to Exhibit H: her involvement, while serving as Solicitor 
General, in a case concerning the constitutionality of the Defense of 
Marriage Act, DOMA.
  When nominated for the job of Solicitor General, Ms. Kagan emphasized 
in her opening statement the ``critical responsibilities'' that the 
Solicitor General owes to Congress, ``most notably the vigorous defense 
of the statutes of this country against constitutional attack.'' Later, 
Ms. Kagan reiterated that she could represent the interests of the 
United States ``with vigor, even when they conflict with my own 
opinions. I believe deeply that specific roles carry with them specific 
responsibilities and that the ethical performance of a role demands 
carrying out these responsibilities as well and completely as 
possible.''
  Ms. Kagan even cited former Solicitor General Ted Olson's defense of 
the campaign finance laws as an example of the way a Solicitor General 
should approach the job. She said, ``I know that Ted Olson would not 
have voted for the McCain-Feingold bill, but he . . . did an 
extraordinary job of defending that piece of legislation. . . . And 
that's what a solicitor general does.''
  Yet, there is substantial reason to doubt that Ms. Kagan genuinely 
carried out her obligation to ``vigorously defend'' a Federal statute 
in district court, the Defense of Marriage Act. In response to 
questions at her Supreme Court hearing, Ms. Kagan acknowledged that she 
was involved in two district court cases involving DOMA. Her personal 
involvement in these cases was itself unusual as she admitted in 
response to written questions: ``In the normal course, the [Solicitor 
General's] Office does not participate in district court litigation.''
  Her involvement would not have necessarily raised concerns were it 
not for the position that the government advocated in the cases. In the 
first case, Smelt v. United States, the Department of Justice filed a 
brief that, as part of its so-called ``defense'' of the DOMA statute, 
admitted to the court that ``this Administration does not support DOMA 
as/matter of policy, believes that it is discriminatory, and supports 
its repeal.'' How can a lawyer mount a ``vigorous'' defense of a 
statute while declaring the statute to be discriminatory? But it gets 
worse. The Justice Department's brief also asked the court to ignore 
one of the strongest arguments in support of DOMA--namely that 
traditional marriage serves as a valuable vehicle for encouraging 
responsible procreation and childbearing. The brief asserted that the 
government ``does not believe that DOMA is rationally related to any 
legitimate government interests in procreation and child-rearing.''
  It is clear that the Justice Department's brief, which was supposed 
to be filed in support of the DOMA statute, in fact undercut the law's 
constitutionality. As one legal scholar and proponent of same-sex 
marriage said about the Justice Department's argument:

       This new position is a gift to the gay-marriage movement, 
     since it was not necessary to support the government's 
     position. It will be cited by litigants in state and federal 
     litigation, and will no doubt make its way into judicial 
     opinions. Indeed, some state court decisions have relied very 
     heavily on procreation and child-rearing rationales to reject 
     SSM [same-sex marriage] claims. The DOJ is helping knock out 
     a leg from under the opposition to gay marriage.

  The Smelt case was later dismissed by the district court for other 
reasons. And that brings us to the second DOMA case in which Ms. Kagan 
was involved--Gill v. Office of Personnel Management. In Gill, the 
Justice Department again offered the same half-hearted defense of DOMA 
and repudiated its strongest legal arguments. This time, however, the 
district court seized on the Justice Department's rejection of the 
procreation and child-bearing rationales and found that DOMA was 
unconstitutional. Ed Whelan, the noted legal commentator and a former 
principal deputy of the Office of Legal Counsel, has explained that the 
decision in Gill ``would be ridiculous but for DOJ's abandonment of 
Congress's stated justifications for DOMA. Under proper application of 
the very deferential `rational basis' review, for example, it would be 
enough to recognize that it would have been reasonable for Congress in 
1996 to regard traditional marriage as a valuable vehicle for 
encouraging responsible procreation and childbearing.''
  Although Ms. Kagan admitted being involved in both Smelt and Gill, 
she refused to tell us her role in the deliberations. In response to 
written questions, Ms. Kagan did admit that her participation in Smelt 
was ``sufficiently substantial'' that she would recuse herself should 
the case come before the Supreme Court. But this promise itself was 
disingenuous because the Smelt case had already been dismissed, so 
there was no chance that it would come before the Supreme Court. On the 
other hand, the Gill case may very well make its way to the Supreme 
Court, but Ms. Kagan did not promise to recuse herself from 
participating in it, despite her involvement in formulating the Justice 
Department's flawed defense of DOMA in the case.
  We will likely never know what Ms. Kagan's advice was in these cases. 
What we do know is that Ms. Kagan has a history of ignoring the law 
when it conflicts with the gay rights agenda. We also know that she 
took the unusual step of getting involved in these district court cases 
challenging DOMA. And we know that the Justice Department went out of 
its way to abandon one of the fundamental rationales for the DOMA 
statute, which resulted in a court, for the first time ever, ruling 
that DOMA was unconstitutional. On the basis of these facts, I believe 
that any reasonable observer would question whether Ms. Kagan kept her 
promise to us that she would ``vigorously defend'' Federal statute as 
Solicitor General.

  Exhibit I is her dubious explanation of why, in another case that she 
handled as Solicitor General, she declined

[[Page S6614]]

to appeal the Ninth Circuit's adverse ruling in Witt v. Department of 
the Air Force, a case challenging the constitutionality of the 
government's don't ask, don't tell statute. At her hearing, Ms. Kagan 
claimed that allowing the Ninth Circuit decision to stand, and 
accepting a remand and trial in district court, would provide the 
Supreme Court with a ``fuller record'' and would help the government 
``show what the Ninth Circuit was demanding that the government do'' to 
defend don't ask, don't tell.
  But a review of the Ninth Circuit opinion and the record in the case 
shows that Ms. Kagan's explanation was disingenuous. The Ninth Circuit 
itself had already said what the government would need to prove for the 
Federal law to survive--there was no need to develop a ``fuller 
record'' or seek further clarification from the courts.
  Ms. Kagan's decision to let the case return to the district court 
ensured that members of the military would be subjected to invasive and 
humiliating trials in the Witt case and in all other challenges against 
don't ask, don't tell--trials in which soldiers would be compelled to 
testify against their comrades, discuss their views of a fellow 
soldier's sexual practices, and watch as the unit's personnel files 
become fodder for lawyers trying to condemn what is supposed to be a 
military-wide policy. The government rightly argued before the trial 
court that such trials are guaranteed to destroy unit cohesion--the 
very thing that Congress sought to protect when it passed the don't 
ask, don't tell statute. And the trial court records show that Kagan 
knew in advance that the trial process would harm the military's 
interests. But she decided to thrust the government into exactly the 
position the military's lawyers most wanted to avoid, perhaps to keep 
in place, and insulate from Supreme Court review, a Ninth Circuit 
ruling that places don't ask, don't tell policy in jeopardy.
  In addition to my concerns that Ms. Kagan was less than candid with 
the Judiciary Committee, I am also concerned about her leftist ideology 
and the potential it will influence her judging. I will discuss three 
areas of concern.
  First, is her defense of the brief filed in Chamber of Commerce v. 
Candelaria. It takes a clever lawyer to argue that the Court should 
take this immigration case, but not Lopez-Rodriguez v. Holder on the 
traditional reasons for granting certiorari. In Candelaria, she asked 
the Supreme Court to strike down an Arizona law that permits the State 
to suspend or revoke the business licenses of companies that knowingly 
employ illegal aliens. She did this even though Federal law expressly 
authorizes States to enforce immigration laws ``through licensing'' and 
even though the courts that have considered the issue have determined 
that States could do precisely what Arizona did. Yet, in Lopez-
Rodriguez, another immigration case, she refused to appeal a decision 
by the Ninth Circuit that permits ordinary deportation hearings to be 
bogged down by long legal fights over the admissibility of clear 
evidence that a person is illegally here. Unlike Candelaria, the Ninth 
Circuit's decision in Lopez-Rodriguez was in conflict with the 
decisions of other courts--including the Supreme Court--involved a 
significant constitutional issue. It is difficult not to conclude that 
Ms. Kagan's actions in these two cases were driven less by the law, and 
more by political expediency.
  My second concern about ideology is that Ms. Kagan has shown she may 
hold a limited reading of the second amendment, even after the Heller 
and McDonald cases. When asked whether the right to bear arms was a 
``fundamental right,'' Ms. Kagan said, ``I think that that's what the 
court held in McDonald.'' She also said that the holding was ``[g]ood 
precedent going forward.'' Of course, there is a record of nominees 
describing the holding of a case and proclaiming that it is ``good 
precedent,'' only to vote to overturn or distinguish that precedent 
once they ascend to the bench. Justice Sotomayor did just that on this 
issue.
  But we need not rely on cynicism to demonstrate that Ms. Kagan may 
not view the recent second amendment precedents as settling the 
question of whether gun ownership is a ``fundamental right.''
  Generally speaking, when a constitutional right is ``fundamental,'' 
any government restriction of that right is subject to ``strict 
scrutiny'' by the courts. But at her hearing, Ms. Kagan left open the 
possibility that some other, lesser standard of scrutiny should apply 
to second amendment restrictions. She said that ``going forward the 
Supreme Court will need to decide what level of constitutional scrutiny 
to apply to gun regulations.'' This does not sound like a commitment to 
the principle that the second amendment guarantees a fundamental right. 
When weighed with her well-documented work in the Clinton 
administration to advance gun control legislation, I believe there is a 
justifiable concern that Ms. Kagan would vote to construe Heller and 
McDonald as narrowly as possible.
  Third, I am concerned that Ms. Kagan sees few, if any, limitations on 
Congress's authority to regulate behavior, or interstate commerce. In a 
remarkable exchange, Senator Coburn asked Ms. Kagan whether it would be 
constitutional for Congress to pass a law requiring Americans ``to eat 
three vegetables and three fruits every day.'' Although Ms. Kagan said 
that such a law sounded ``dumb,'' she refused to say that such a law 
would be unconstitutional. In fact, during the course of the exchange, 
Ms. Kagan repeatedly emphasized that a court analyzing such a statute 
should ``read the [commerce] clause broadly'' and give ``real 
deference'' to Congress.
  I agree that the commerce clause gives the Congress substantial 
authority, but it does not give Congress unlimited authority. That Ms. 
Kagan was unwilling to say a law requiring the consumption of produce 
is beyond Congress's authority suggests she would vote to uphold 
statutes that exceed the boundaries of the commerce clause. Stretching 
the commerce clause gives too much power to Congress.
  Finally, it is worth noting that Ms. Kagan came to the Senate with a 
lack of legal and judicial experience, especially when compared to 
other recent nominees. Some have reached back 40 years to compare Ms. 
Kagan's experience to that of Chief Justice Rehnquist, the last nominee 
without prior judicial experience confirmed to the Supreme Court in 
1972. William Rehnquist, however, spent 16 years as a practicing 
litigator in my home State of Arizona and 2 more years as Assistant 
Attorney General, Office of Legal Counsel, a position that was later 
held Justice Scalia 1974-1977 and that, according to the Department of 
Justice, ``typically deal[s] with legal issues of particular 
complexity'' and ``provides authoritative legal advice to the President 
and all the executive branch agencies.'' In contrast, Ms. Kagan's law 
practice is confined to two years in private practice shortly after law 
school and 1 year as the Solicitor General.
  Her limited experience is not by itself disqualifying, but it did 
increase the importance of her hearing. Had she answered questions in 
an honest and straightforward manner, we might have a better basis to 
know what kind of judge she would be. But instead, Ms. Kagan either 
dodged questions or gave what were clearly disingenuous answers 
intended to mask her views. She also failed to make the case that her 
political ideology would not influence her judging. For all of the 
reasons I have discussed, I cannot support her nomination.
  The PRESIDING OFFICER. The Senator from Oklahoma is recognized.
  Mr. INHOFE. Mr. President, I certainly could not improve upon the 
statements and arguments that have been made by my good friend from 
Arizona. I come from a little different perspective. There are six 
things I think any one of which would seriously make us consider voting 
against her.
  I want to say this, first, though. Back when she was first nominated 
I was the first one to say I was opposed to her. The main reason was 
these things came up, most of them, when she was up to be confirmed for 
Solicitor General. At that time I objected to her being in that 
position.
  I have a policy--I think it is good; people in Oklahoma know it--and 
that is, if you oppose someone's confirmation for a position and then 
they come back later for a higher position, it is automatic because the 
bar should be higher.
  Anyway, today I want to reemphasize a couple of things that were 
mentioned

[[Page S6615]]

by my friend from Arizona. One objection to the Kagan nomination is 
that she undeniably lacks the experience.
  I think Senator Kyl said it very well. People say there have been 
others in history that didn't have any judicial experience, but in 
those cases, they averaged 21 years of practicing law. They had that 
experience. This would be the first time in history we have someone 
with less than 2 years' experience and no judicial experience. That 
would be reason enough, but that is not my major objection.
  My major objection is her disdain for the U.S. military. While dean 
at Harvard, Kagan banned the military during a time of war from 
recruiting on campus due to her objection over the don't ask, don't 
tell policy. That was the policy put together during the Clinton 
administration while she was in the administration. She did not object 
to it at that time, but she objects to it now.
  There has been much made by her supporters about her role in this 
incident, but the truth is that in November of 2004, after the Third 
Circuit Court of Appeals struck down the Solomon amendment--I was there 
when the Solomon amendment was passed in the House--Kagan affirmatively 
disallowed the military from recruiting at the school's office of 
career services. Subsequently, she joined 40 other schools in filing an 
amicus brief with the Supreme Court in the case opposing the Solomon 
amendment which was then overwhelmingly opposed and reversed by the 
Supreme Court unanimously. She was taking advantage of that opportunity 
when she didn't allow recruiters at the university. We have seen this 
happen around the country, not only Harvard but in California. This is 
something that is definitely in opposition to the law that is still in 
place, referred to as the Solomon amendment.
  Equally alarming to these actions is her misrepresentation of the 
facts before the Judiciary Committee. I wasn't aware of this, certainly 
not back when she was up for Solicitor General. She testified that 
military recruiters had ``full and good access'' to Harvard's campus. 
Military recruiters clearly did not have full and good access, as they 
had to work through the school's veterans group as opposed to being 
allowed to go through the office of career services, a part of the 
university.
  Internal Pentagon documents reveal that under her deanship ``The Army 
was stonewalled at Harvard.'' Furthermore, Kagan told the committee 
that in banning recruiters she ``always thought we were acting in 
compliance'' with Federal law. Yet in her own e-mail to Harvard 
students and faculty, she wrote that she had ``hope'' that the 
government ``would choose not to enforce'' the law.
  I am alarmed that Kagan would not only ban military recruiters on 
campus in a time of war but that she would do it to advance her own 
liberal and social agenda, then mislead the committee with her 
statements.
  During her tenure as dean of Harvard, Kagan sent a letter with three 
other law school deans to the Senate in 2005 opposing legislation that 
sought to prevent terrorists convicted in military tribunals from 
appealing their convictions in Federal courts. She compared this 
legislation to the ``fundamentally flawless'' actions of a 
``dictatorship'' that has ``passed laws stripping courts of power to 
review executive detention or punishment of prisoners.'' That is not 
what I said. That is what Ms. Kagan said.
  We have the best judicial system in the world. Equating our laws 
relating to the war on terror to that of a dictatorship would be 
laughable, were it not so pervasive in liberal academia.
  Kagan has a history of misrepresenting facts to push her liberal 
agenda, including her efforts while working in the Clinton 
administration to change statements of two medical associations to 
withhold the truth about partial-birth abortion. This is interesting. 
Both groups had a firm position, and she influenced a change in that 
position. During the debate over the Partial Birth Abortion Ban Act, 
Kagan wrote a memo to President Clinton in December 1996 objecting to 
the release of the American College of Obstetricians and 
Gynecologists--ACOG--proposed statement that partial-birth abortion is 
never medically necessary. This is what their position was. They came 
out and said that it was never necessary.
  ``The release of the statement would, of course, be a disaster.'' 
Those are her words, talking at that time to the Clinton 
administration. We have evidence from Kagan's handwritten notes that 
she advocated a change in the statement to reflect that partial-birth 
abortion may be medically necessary. One month later, ACOG released a 
statement with language nearly identical to Kagan's language that such 
abortions may be medically necessary to save the life and preserve the 
health of the mother. In addition to seeking to change ACOG's position, 
Kagan also sought to alter the American Medical Association position on 
partial-birth abortion. She once again tried to alter the facts and 
encourage AMA to change its medical policy on partial-birth abortion.
  What is perhaps more concerning about Kagan's efforts to manipulate 
the medical policy of ACOG and AMA is that these medical policy 
statements were then used, sometimes successfully, in Federal courts to 
invalidate State laws and the Partial Birth Abortion Ban Act. She 
manipulated medical facts to advance a barbaric practice and push a 
political agenda.
  We are talking about two highly respected medical associations that 
said partial-birth abortion was not something that was necessary, 
changing their positions. Then that was later used in court cases. 
Moreover, Kagan criticized the Supreme Court decision of Rust v. 
Sullivan which upheld the Department of Health and Human Services 
regulations prohibiting title X family planning funds from being 
directed toward programs where abortion is a method of family planning.
  Additionally, while clerking for Justice Marshall, she authored a 
memo arguing that all religious organizations should be off limits from 
receiving Federal funds for programs authorized by the Adolescent 
Family Life Act such as pregnancy testing, prenatal/postnatal care, 
adoption counseling, and childcare, because these programs are so close 
to the central concerns of religion.
  I also seriously question Kagan's willingness to honor and defend the 
second amendment, getting into an area that is probably more sensitive 
to a lot of my friends, including my son and members of the family, who 
are active and strong believers in second amendment rights. While 
clerking for Justice Marshall, Kagan wrote a memo about a case 
challenging Washington, DC's strict gun control laws. In only four 
sentences she was dismissive of the case, writing that she was ``not 
sympathetic'' to an individual-rights view of the second amendment. As 
everyone knows, the Supreme Court has since upheld the individual right 
to keep and bear arms. Kagan also used her position with the Clinton 
administration to advocate various anti-second amendment initiatives. 
Documents from the Clinton library illustrate that she supported 
background checks for secondary market gun purchases as well as 
municipal liability suits against gun manufacturers.
  She helped develop an executive order banning the importation of 
certain types of semiautomatic weapons that were not covered by the 
1994 assaults weapons ban. She also sought to permit law enforcement to 
retain Brady background checks information on lawful gun sales.
  Finally, in an internal document regarding the Volunteer Protection 
Act, she described the NRA as ``a bad guy organization.''
  She might get by with that in this Chamber, but she wouldn't get by 
with it in Oklahoma. We read the Constitution. We know what it says. 
She has no respect for the second amendment.
  I am also gravely concerned, based on Kagan's writings and 
statements, that she would be a judicial activist who would seek to 
legislate from the bench. In her 1998 masters thesis at Oxford she 
wrote:

       As participants in American life, judges will have 
     opinions, prejudices, and values. Perhaps more important, 
     judges will have goals. And because this is so, judges will 
     often try to mold and steer the law in order to promote 
     certain ethical values and achieve social ends. Such activity 
     is not necessarily wrong or invalid.

  She is stating, not just from today but going all the way back to her 
Oxford days, that judicial activism is appropriate. Rather than affirm 
the role

[[Page S6616]]

of judges as the faithful interpreters of the law, Kagan voiced her 
support for judges who seek to serve as legislators, who develop their 
own empathy standards and apply the law in a matter they personally see 
fit. Her self-acknowledged judicial hero, Aharon Barak, perfectly fits 
this mold. In her testimony before the committee, she even affirmed 
that she would consider foreign law when she decides cases. She said:

       I guess I'm in favor of good ideas from wherever they come.

  We are talking about referring to other countries that have a 
different judicial system and saying maybe they are right and maybe we 
are wrong. I simply cannot support a nominee who looks to other 
judicial systems or judicial philosophies or evolving standards of 
decency rather than the text of the Constitution to interpret law.
  I have thoroughly reviewed the record of Elena Kagan and have come to 
the firm conclusion that she lacks the qualification and experience to 
be a Supreme Court Justice.
  I have named six things. Any one of these six should be 
disqualifying. One is, she wants to consider foreign judiciaries. Two, 
she has no judicial or trial experience. Third, she is a judicial 
activist. Four, she is extreme in her philosophy on abortion and anti-
second amendment views, and she is antimilitary.
  I think of all the things I have mentioned, probably the part that 
concerns me most is her position that if we are trying someone in a 
military trial, maybe a terrorist or an activist, that they would be 
given the right to appeal to our court system and inherit all the 
benefits any citizen of the United States has.
  I can only say what I said several months ago when she was first 
nominated. In my opinion, as 1 of 100 Senators, if she is not qualified 
to be Solicitor General, she is certainly not qualified for the higher 
job of Justice of the U.S. Supreme Court.