[Congressional Record Volume 156, Number 116 (Tuesday, August 3, 2010)]
[Senate]
[Pages S6616-S6642]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




NOMINATION OF ELENA KAGAN TO BE ASSOCIATE JUSTICE OF THE SUPREME COURT 
                    OF THE UNITED STATES--Continued

  The PRESIDING OFFICER. Under the previous order, the time until 8:15 
p.m. will be divided in alternating 1-hour blocks, with the majority 
controlling the first block.
  The Senator from Wisconsin.
  Mr. KOHL. Mr. President, I join my colleagues today in congratulating 
Chairman Leahy and Senator Sessions for conducting fair and impartial 
hearings for Solicitor General Kagan. I am here today to support 
General Kagan's nomination to the Supreme Court. Her confirmation will 
be a milestone that we can all be proud of. For the first time in 
history, three women will be serving on the Supreme Court at one time.
  General Kagan came before the Judiciary Committee with an impressive 
resume that had all the trappings of an accomplished lawyer worthy of 
appointment to the Supreme Court. During her hearings, she proved 
herself to be very well qualified for the job.
  She impressed us with her sharp and keen mind, her intellect, and 
comprehensive knowledge of the Constitution and the law. She pledged to 
consider each case with an open mind and to impartially uphold the rule 
of law. She appeared mindful of the need for judicial modesty and 
fidelity to precedent, but not when it stands in the way of ending 
injustice or guaranteeing our fundamental rights.
  At times during the hearings, Solicitor General Kagan seemed to be 
somewhat more candid than previous nominees. She disavowed a purely 
originalist interpretation of the Constitution, recognizing that such a 
limited approach will not always solve our 21st-century problems. I was 
pleased she unequivocally expressed her support for opening the Supreme 
Court to cameras. So I believe with General Kagan's confirmation, the 
American people will be one step closer to seeing for themselves the 
Supreme Court debate our most pressing legal and constitutional issues.
  But despite the strength of her qualifications, like so many nominees 
before her, General Kagan often retreated to the generalities and 
platitudes she once criticized. I am pleased she rejected the analogy 
that Supreme Court Justices are like umpires, simply calling balls and 
strikes. Instead, she acknowledges that each Justice's legal judgment 
determines the outcome of close cases. But at times her answers gave us 
too little insight into what informs her unique legal judgment and how 
it will impact those close cases.
  As I have said before, the confirmation process demands more than 
that. This was the public's only opportunity to hear from General 
Kagan. In my opinion, she made small inroads, but we still have a long 
way to go in meeting the high standard to which we should hold Supreme 
Court nominees during their confirmation hearings.
  In sum, I am voting for General Kagan because she is unquestionably 
well qualified, has a record of being a principled, consensus-building 
lawyer, and because I believe her judicial philosophy is within the 
mainstream of our country's legal thought. I am confident she will make 
a superb Supreme Court Justice and is a worthy nominee to carry on 
Justice Stevens' long legacy of exemplary public service to our Nation.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. FRANKEN. Mr. President, above the entrance of the U.S. Supreme 
Court are four words, and four words only: ``Equal Justice Under Law.''
  I rise today to support the nomination of Solicitor General Elena 
Kagan to be an Associate Justice of the U.S. Supreme Court. But I also 
rise today to put General Kagan's nomination in the context of the 
history of the Supreme Court and how that Court has affected the lives, 
the jobs, and the safety of working Americans.
  I want to ask if working Americans are actually getting equal justice 
under law in the highest Court of our land. And I do not want to talk 
about the Court's impact on working Americans in terms of stare decisis 
or deference to the political branches or judicial modesty. I want to 
talk about this in terms of the real things that are happening to real 
people--real working people--right here in the United States.
  In 2003, a 54-year-old man named Jack Gross was working for an 
insurance company in Iowa. A few years earlier, his company had chosen 
him to rewrite all of their policies in 1 year. And

[[Page S6617]]

he did it. In fact, he was one of the company's top employees. His 13 
years of performance reviews placed him in the top 3 to 5 percent of 
the company.
  But when his company merged with another company, Jack Gross got 
demoted. In fact, so did all of the other Iowa employees who were 50 or 
older. So Mr. Gross sued for age discrimination under a Federal law 
called the Age Discrimination in Employment Act. He went to trial 
before a jury of his peers, and he won.
  The Roberts Court overturned that verdict. They said the Age 
Discrimination in Employment Act did not ban all kinds of age 
discrimination, only age discrimination where age was the single 
determinative reason for a firing or a demotion.
  The funny thing is that before the Roberts Court decided this, no one 
had made that argument--not Gross, not the company, not Congress, no 
one. The Court just pulled it out of thin air in favor of the company.
  Is that equal justice under law?
  In 1979, Lilly Ledbetter went to work at a Goodyear tire plant in 
Gadsden, AL. She was also very good at her job. She even earned the 
company's top performance award. Being one of just a few women at the 
plant, she endured harassment that her male colleagues never faced.
  But one day, after 19 years on the job, she found a note in her 
locker which told her she was making much less than her male coworkers. 
So she went to court and tried to get Goodyear to pay her the same 
thing they had paid the men who had her same job. She went to trial 
before a jury of her peers, and she won. The jury awarded Ms. Ledbetter 
$3 million.
  But the Roberts Court struck down the award. Why? Because Lilly 
Ledbetter had not gone to court within 180 days of her first 
discriminatory paycheck decades earlier, even though she had no way of 
knowing what her male coworkers were making back then, even though the 
company continued to discriminate against her for decades after that, 
even though the Congress did not write the law that way.
  Is that equal justice under law?
  In February 1989, a man named Joe Banta was preparing for the herring 
fishing season in his hometown of Cordova, AK. For three generations, 
the Banta family had made their living fishing herring--as the 
Presiding Officer well knows this story--and digging for clams in 
Prince William Sound.
  All of that ended on March 24, 1989, when the Exxon Valdez--the oil 
tanker--crashed into a reef and spilled hundreds of thousands of 
barrels of crude oil into the sound in the Presiding Officer's home 
State.
  Shortly before leaving port, the captain of the Valdez had downed not 
one, not two, but five double Vodka shots. There was proof that Exxon 
knew full well about his alcohol problem. To this day we can find oil 
from the Exxon Valdez in the waters of Prince William Sound. To this 
day the herring in Prince William Sound have not come back. To this day 
generations of fishermen such as Joe Banta are out of work.
  With the help of a Minnesota attorney, Brian O'Neill, the fishermen 
of Prince William Sound took Exxon to court. They took Exxon before a 
jury of their peers, and they won. The jury awarded them $5 billion. 
That is a fraction of Exxon's $45 billion in profit in 2008. But the 
Roberts Court slashed the verdict to one-tenth of its original size. 
Five million dollars is, of course, a lot of money, but it had to be 
divided among 32,000 people.
  Here is the other thing: There was not a rule that called for this. 
There is no statute or precedent that said the Court had to cap the 
fishermen's damages. So the Roberts Court just made one up. They made 
up a cap for what the fishermen could recover--after the fishermen sued 
and got a verdict from a jury of their peers.
  When the Court needed to justify that cap, it said jury verdicts were 
too unpredictable for companies and that even a ``bad man'' deserves 
reasonably predictable jury verdicts. This is the standard that will 
soon be applied to the fishermen of the gulf coast.

  Is this equal justice under law?
  Jack Gross, Lilly Ledbetter, and Joe Banta are not alone.
  Since 2005, the Roberts Court has also struck down a century-old 
precedent that protected small business owners from price fixing. It 
has made it harder for investors to sue the firms that knowingly 
participated in a scheme to defraud them. In fact, it has made it 
harder for everyone to get their day in court, especially individual 
employees and investors.
  It has removed half of the Nation's largest known polluters from 
coverage under the Clean Water Act. It has found that corporations--
corporations--have the same free speech rights in our elections as 
human beings.
  When the Roberts Court chooses between corporate America and working 
Americans, it goes with corporate America almost every time, even when 
the citizens of this country, sitting in a duly appointed jury, have 
decided it the other way.
  That is not right. It is not equal justice under the law.
  Today we consider the nomination of Solicitor General Elena Kagan to 
a Court that has made those words an empty promise to most working 
Americans. It is fitting that General Kagan has been nominated for 
Justice Stevens' seat because the last three Justices to occupy this 
seat--Justice Stevens, Justice Douglas, and Justice Brandeis--were all 
deeply skeptical of corporate power. All three Justices rejected the 
idea that the Constitution cannot tell the difference between 
corporations and human beings.
  Justice Louis Brandeis argued throughout his career that the massive 
wealth held by corporations was dangerous to democracy; that corporate 
interests could wield far too much influence, not because of the 
strength of their arguments but because of the size of their bank 
accounts. In fact, he wrote a book about this. It is called ``Other 
People's Money--and How Bankers Use It.'' In that book, Brandeis 
catalogued example after example of how Wall Street bankers took 
advantage of their position to enrich themselves at the expense of the 
American people. Does this sound familiar? And it was in this book that 
he famously stated that ``sunlight is said to be the best of 
disinfectants''--that you have to train an unwavering spotlight on the 
schemes and machinations of corporate America.

  After he joined the Supreme Court, Justice Brandeis wrote in a 
dissent in a 1933 case that our Nation's Founders understood the 
``insidious menace inherent in large aggregations of capital, 
particularly when held by corporations,'' and that this ``difference in 
power between corporations and natural persons is ample basis''--ample 
basis--for treating them differently under the law.
  Justice William Douglas joined the Supreme Court upon Justice 
Brandeis's retirement. Before joining the Court, Justice Douglas was 
Chairman of the SEC, where he crusaded for investor protections and led 
investigations into unethical corporations. While Chairman of the SEC, 
in an address to the Fordham University Alumni Association, Douglas 
warned that ``one aspect of modern life which has gone far to stifle 
men is the rapid growth of the tremendous corporation'' and that in 
these conglomerates, ``service to human beings becomes subordinate to 
profits.''
  In a 1949 case, Justice Douglas wrote that if Americans ``want 
corporations to be treated as humans are treated, if they want to grant 
corporations this large degree of emancipation from state regulation, 
they should say so. [ . . . ] We should not do it for them through the 
guise of interpretation.'' Justice Douglas understood that corporations 
are not people, don't have the same rights as people, and that our laws 
are critical in keeping their power in check.
  Justice Stevens continued this tradition. In Ledbetter, in Gross, in 
Exxon, in Stoneridge, in Rapanos, and in Citizens United, Justice 
Stevens fought the empowerment of big business at the expense of 
working Americans. In fact, in most of these cases, Justice Stevens led 
the dissent. He is the Justice who said in no uncertain terms that 
``corporations are not a part of `We, the People,' by whom and for whom 
our Constitution was established.''
  I have said it before--General Kagan has big shoes to fill. But after 
months of learning more about General Kagan and a week of confirmation 
hearings, I think it is safe to say there is no question she can do it.
  Some have criticized General Kagan because she lacks experience as a

[[Page S6618]]

judge, even though 40 out of the 111 Justices in the Supreme Court's 
history had not been judges before they served on the High Court and 
even though Justice Scalia said only this January in a speech in 
Jackson, MS, that the Court needs Justices who haven't been judges.
  It seems to me that Senators have been going to absurd lengths to 
discount General Kagan's qualifications. We even had a Senator in the 
hearings who acknowledged that, yes, there has been a long history of 
Justices who have never served previously as judges but that those 
Justices averaged more than 20 years of private practice experience, 
whereas General Kagan only worked for 2 years in a law firm. To me, 
this has a tortured ring of someone arguing that every southpaw Cy 
Young winner in the American League since the advent of the designated 
hitter has had a lower ERA in away games on AstroTurf than any right-
hander.
  To people making these kinds of arguments, I wish to say this: You 
only have one life. I think that in her 50 years, General Kagan has 
amassed an incredible record of service and accomplishment. She has 
been a clerk for a Justice of the U.S. Supreme Court; special counsel 
to the Senate Judiciary Committee; a top adviser to the 42nd President 
of the United States; the first woman dean of Harvard Law School; and 
the first woman to be Solicitor General in the history of the United 
States. So is she qualified for the job? Of course. Of course she is. 
But General Kagan has done more than show she is qualified for the job; 
she has also shown she understands it. She has shown she understands 
the obligation of the Supreme Court to the American people and to the 
Congress that represents them.
  For years, conservatives have warned that we should beware of 
activist judges who overreach their powers, that we should beware of 
judges who legislate from the bench. Now that the Roberts Court is in 
power, suddenly these same conservatives are saying there is really no 
such thing as judicial activism, it is all in the eye of the beholder, 
and that an activist judge is just a judge who issues decisions you 
don't like. But General Kagan hasn't taken the bait. General Kagan said 
there is such a thing as activism. She said it herself: An activist 
judge is a judge who doesn't defer to the policy decisions of the 
political branches, who doesn't respect precedent, and who doesn't 
decide cases narrowly, avoiding constitutional questions when possible. 
And when she said that, I think most people sitting in the committee 
room at her confirmation hearing liked that definition.
  When you apply that definition to the Roberts Court--to the cases 
upon cases where the Roberts Court has limited the rights of workers or 
pensioners or investors or small business owners or voters--you find 
there is no question, no question whatsoever that this is an activist 
Court. It is a Court that has replaced Congress's policy judgments with 
its own perspective, with its own prejudices, a Court that has 
legislated from the bench.
  But, as I said, in her confirmation hearings, General Kagan didn't 
just define activism, she didn't just acknowledge its existence, she 
also said clearly and repeatedly that she would avoid it. If she is 
confirmed and if we have a Justice Kagan, as I am certain we will, she 
will continue a long tradition of protecting and serving the American 
people. She will serve them with equal justice under law.
  I urge all of my colleagues to support her nomination.
  Thank you, Mr. President. I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I wish to thank the Senator from 
Minnesota. I certainly concur with his conclusion. We serve on the 
Judiciary Committee together. We both heard the testimony of Elena 
Kagan as well as had a chance to ask her questions and listen to her 
responses to other Senators. She is an extraordinarily talented woman 
who could bring to the Supreme Court a wealth of experience. I couldn't 
agree with the Senator from Minnesota more that the fact that she has 
not worn a judicial robe before does not in any way disqualify her. She 
has an exemplary resume.
  I thank the Senator for noting the most important element here is 
that many of the arguments that have been used against judicial 
nominees in the past have evaporated on the other side of the aisle 
because the Roberts Court is in the midst of an activist phase--
something they promised would never happen, and it has happened, but it 
has happened to the satisfaction of one part of the political spectrum, 
where there are fewer critics as a result.
  I thank the Senator from Minnesota for his eloquent remarks in 
relation to Elena Kagan.


                           Credit Card Reform

  Mr. President, this morning I took a look at the Wall Street Journal 
Web site, and there was an article entitled ``The New Credit Card 
Tricks.'' I thought to myself, I hope my wife doesn't get a chance to 
see this because ever since last year when we reformed credit cards in 
America, I come home on the weekends to Springfield, IL, and my wife 
hands me a new envelope she has opened.
  Guess what they are doing, Mr. Senator.
  In that envelope will be the latest changes in our credit cards from 
these companies. I have to say we pay off our credit cards. We do our 
best and almost always pay them off on a monthly basis. We have a 
pretty good credit rating--maybe not the best but a pretty good one. 
Yet we have been receiving notices for the last year from these credit 
card companies about changes and to read the contract. I wear these 
glasses, but I need a magnifying glass to read the contract, and I am a 
lawyer. Trying to understand what they are doing to me is very hard. 
But then in bold print you will see an interest rate number that has 
just gone up or a charge that has just gone up.
  My wife said to me: What is this all about? I thought you reformed 
credit cards.
  This morning's Wall Street Journal, in an article entitled ``The New 
Credit Card Tricks,'' tells the story about what has been happening 
since 2009 when we decided to reform credit cards. Well, as one man 
said, whose name is Victor Stango and who is an associate economist 
with the Federal Reserve Bank of Chicago--he has been analyzing the 
Credit Card Reform Act, and he said it is a race between regulators 
writing ever more complex laws and credit card companies setting up 
evermore complex fees.

  Just to give an idea of what we are talking about, the article says:

       So the banks are getting aggressive. According to a July 22 
     report from Pew Charitable Trust, a nonpartisan research 
     group, the industry's median annual fee on bank credit cards 
     jumped 18 percent to $59 between July of 2009 and March of 
     this year, 2010.

  Credit unions, which are often viewed as the hometown, smalltown mom-
and-pop, closest to the people, your best friends when it comes to 
banking--listen to this:
  At credit unions, annual fees soared 67 percent in that same period 
to $25. During the same period, the median cash-advance and balance-
transfer fees jumped by 33 percent.
  So it isn't just a matter of raising fees; it turns out they are 
raising them at a gallop, at a fast rate, trying to get ahead of the 
credit card reform bill.
  They have also dreamed up a dozen different ways to beat the law. 
Give us a year, they said, so we can change our books and get 
everything ready for the new credit card reform. They spent their year 
with their lawyers and accountants dreaming up new ways to avoid the 
law. We should have known it. We shouldn't have given them all this 
time.
  They have dreamed up something called professional cards. These are 
like corporate cards but carry the same terms as consumer cards and 
they aren't covered under the new law. They are reinventing the credit 
card with a new name and a higher fee and a higher interest rate, and 
they skirt around the laws we passed.
  We said in the law--incidentally, we stipulate that late-payment fees 
shouldn't be triggered on a Sunday or a holiday because you couldn't 
put anything in the mail. Well, here is a man, whom they talk about in 
this article, by the name of Alan Condon of Woodstock, GA. He ended up 
facing one of these penalty fees, and he noticed that the day it was 
triggered was a Sunday. He has read the new Credit CARD Act. That is 
not supposed to happen. You can imagine what it took for Mr.

[[Page S6619]]

Condon to challenge the Discover Card, which eventually, after all of 
his protests, waived the late fee they charged him. How many people 
have that kind of determination to stick with it, as he did?
  They have new cards such as a rebate card which, if you don't read it 
carefully, sounds like a great deal on a credit card and ends up taking 
money away from you.
  I could go on and on.
  Mr. President, I ask unanimous consent that this article be printed 
in its entirety in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                    [From the WSJ.com, Aug. 3, 2010]

                     (By Jessica Silver-Greenberg)

       Whomever President Barack Obama taps to head the new Bureau 
     of Consumer Financial Protection could find it difficult to 
     keep ahead of the credit-card industry.
       The Credit Card Accountability Responsibility and 
     Disclosure Act of 2009, known as the Card Act, was intended 
     to reshape the contours of consumer finance. Among other 
     things, it forces card issuers to give customers more notice 
     about interest-rate increases and restricts certain 
     controversial billing practices such as inactivity fees.
       Yet some of the biggest card issuers in the U.S., including 
     Citigroup Inc., J.P Morgan Chase & Co. and Discover Financial 
     Services, are already rolling out a slew of fees designed to 
     recapture some of their lost income, in part by skirting the 
     new rules. Some banks may even be violating the law outright, 
     say consumer advocates.
       ``Card companies are figuring out how to replace old fees 
     with new ones,'' says Victor Stango, an associate economist 
     with the Federal Reserve Bank of Chicago and a professor at 
     the University of California, Davis, who has been analyzing 
     how the Card Act will affect consumer banking. ``It's a race 
     between regulators writing ever-more-complex laws and credit-
     card companies setting up ever-more-complex fees.''
       The banks have a big gap to fill. The Card Act is expected 
     to wipe out about $390 million a year in fee revenue, 
     according to David Robertson, the publisher of industry 
     newsletter Nilson Report. On July 16, during its second-
     quarter earnings call with analysts, Bank of America Corp. 
     Chief Financial Officer Charles Noski warned that the Card 
     Act and other regulatory changes would prompt the bank, the 
     nation's largest in assets, to write off up to $10 billion in 
     the third quarter.
       ``If you have every major issuer saying that we are losing 
     our shirt, then that speaks volumes,'' Mr. Robertson says. 
     ``Proportionately, these fees should be understood as almost 
     inconsequential compared to the losses.''
       So the banks are getting aggressive. According to a July 22 
     report from Pew Charitable Trusts, a nonpartisan research 
     group, the industry's median annual fee on bank credit cards 
     jumped 18% to $59 between July 2009 and March 2010. At credit 
     unions, annual fees soared 67% to $25. During the same 
     period, the median cash-advance and balance-transfer fees 
     jumped by 33%.
       All of these increases are perfectly legal, of course. 
     Banks and other issuers would have a difficult time extending 
     credit to consumers, even at high interest rates, if they 
     couldn't augment those revenues with fee income. ``We're 
     coming out of a deep recession that issuers are still working 
     through,'' says Peter Garuccio, a spokesman for the American 
     Bankers Association.
       But some banks may be going too far. In a July 7 letter to 
     the Office of the Comptroller of the Currency, which 
     regulates many of the biggest U.S. banks, a coalition of 
     consumer groups including the National Consumer Law Center, 
     the Consumer Federation of America and Consumer Action 
     flagged several ``potential violations of the Credit Card 
     Act.''
       Other banks are ramping up their marketing of so-called 
     professional cards. These are like corporate cards but can 
     carry the same terms as consumer cards--and aren't covered 
     under the new law. In the first quarter of this year, issuers 
     sent out 47 million professional-card offers to U.S. 
     households, up from 13.2 million in the corresponding period 
     last year, according to research firm Synovate.
       ``This can be a very easy way around the Card Act,'' says 
     Josh Frank, a senior researcher at the Center for Responsible 
     Lending, a consumer group.
       The upshot: Borrowers must be more vigilant than ever--even 
     before they make their first charge on a new credit card.


                         Saddled With Late Fees

       Alan Condon of Woodstock, Ga., says he carefully reviews 
     his card statements each month, and even read the Card Act--
     all 33 pages--after it was passed in May 2009.
       Among other things, the Card Act stipulates that late-
     payment fees shouldn't be triggered on a Sunday or holiday, 
     when there is no mail delivery.
       The rule ``is clearly meant to offer cardholders some 
     semblance of relief so that they don't get saddled with late 
     fees for making a reasonable payment on the next business 
     day,'' says Chi Chi Wu, a consumer credit lawyer at the 
     National Consumer Law Center.
       Mr. Condon says he was shocked when he opened his credit-
     card statement dated June 18 and saw that Discover had 
     charged him $39 for a late payment--and had upped his 
     interest rate on future purchases from 17% to 24.99%. He says 
     the company considered him late because he paid on June 14, 
     instead of June 13, a Sunday.
       ``I just got mad,'' says the 56-year-old computer-software 
     developer, who says he had never before been late on a 
     Discover payment.
       ``We were in compliance with the Card Act,'' says Discover 
     spokesman Matthew Towson. ``The law states that if a creditor 
     does not receive or accept payments on weekends or holidays, 
     then the date is extended. But we accept payments seven days 
     a week.''
       Nevertheless, Discover reviewed Mr. Condon's account at The 
     Wall Street Journal's request and decided to waive the late 
     fee and reduce Mr. Condon's interest rate to its earlier 
     level.
       The Card Act also stipulates that issuers can't jack up 
     rates on existing balances unless a cardholder is at least 60 
     days late. But there is a creative maneuver around that: the 
     so-called rebate card.
       Citibank rolled out rebate-card offers to some of its 
     customers last fall, offering to refund up to 70% of finance 
     charges when customers pay on time. The problem: Rebate 
     offers aren't governed by the Card Act, and an issuer can 
     revoke them suddenly and hit cardholders with high charges.
       The net result is the same as raising rates--and because it 
     is perfectly legal, customers have little recourse. ``Rebates 
     on finance payments may seem like a good deal, but you could 
     end up with a very high interest rate suddenly,'' says Mr. 
     Frank, of the Center for Responsible Lending.
       ``The rebate offer is clear, transparent, and we believe 
     fully within the spirit of the Card Act,'' says Citigroup 
     spokesman Samuel Wang.
       Shortening the billing cycle is another new tactic some 
     banks may be using. The Card Act requires companies to 
     provide a window of at least 21 days from when a statement is 
     mailed and when payment is due.
       Yet the National Consumer Law Center and Consumer Action 
     say they have received complaints from borrowers who allege 
     that their billing cycles have been shortened to fewer than 
     21 days.
       ``Since the passage of the act, we've heard from numerous 
     borrowers alleging that they are shortchanged on billing 
     cycle time,'' says Joe Ridout, a consumer-services manager at 
     Consumer Action.


                         Inactivity Fees Return

       As expected, issuers also are raising basic fees in the 
     wake of the Card Act, in some cases significantly. Many 
     credit-card companies, for example, are increasing their 
     balance-transfer charges sharply. ``We are seeing an increase 
     across the board in fees because card companies are sensitive 
     about their ability to price for risk,'' says Mr. Robertson 
     of the Nilson Report.
       Last June, for example, J.P. Morgan's Chase unit alerted 
     customers that its maximum balance-transfer fee was rising to 
     5% from 2% on a wide range of its cards.
       ``In a higher-loss environment, it's important that we are 
     prudent with our balance-transfer offers,'' says Stephanie 
     Jacobson, a spokeswoman for the bank. She adds that ``We 
     often do have lower rates in a competitive marketplace.''
       Companies are raising their minimum finance charges, too. 
     Before the Card Act, the average minimum monthly finance 
     charge was about 50 cents, according to Nick Bourke, director 
     of the Safe Credit Card Project at Pew. Now, he says, those 
     fees can reach $1.50.
       That difference might not seem like a lot, but it adds up. 
     Borrowers pay $430 million a year in minimum-finance charges 
     alone, according to the Center for Responsible Lending.
       The Card Act's provisions are being implemented in stages, 
     with the last phase taking effect on Aug. 22. After that, 
     issuers will no longer be able to charge ``inactivity fees,'' 
     or extra charges for people who don't spend a certain amount 
     each year.
       So companies are dressing them up in other ways.
       Citigroup, for example, has started charging some of its 
     customers an annual fee, which can be waived if a customer's 
     card activity exceeds $2,400 a year.
       Tristan Denyer of San Francisco says he was surprised when 
     he got a notice that Citigroup was instituting a $60 annual 
     fee on his card. Mr. Denyer, 37, a senior Web designer, says 
     he rarely carried a balance on his card, and refused to rack 
     up the $2,400 in charges necessary to erase the fee.
       ``I figured this was just a tactic to get me to spend more 
     and give them more money,'' Mr. Denyer says. He says he 
     decided to close his account.
       Citigroup's Mr. Wang acknowledges that Card Act rules 
     forbid the waiving of annual fees based on ``a customer's 
     annual spending on the card.'' He adds, however, that ``the 
     rules will not prohibit cash-back rewards or similar 
     incentives that encourage account usage.''
       Another potential trap: low-credit-limit cards, which are 
     popular among college students.
       The Card Act says a card's total annual fees can't exceed 
     25% of a borrower's credit line. But some issuers may be 
     evading the fee restrictions by charging an 
     upfront processing fee that doesn't fall under the 25% 
     cap.
       First Premier Bank, headquartered in Sioux Falls, S.D., 
     offers several low-credit-

[[Page S6620]]

     limit cards. Its Centennial card comes with a $300 limit and 
     a $95 upfront processing fee.
       Melinda Robinson of Lorena, Texas, learned firsthand how 
     rapidly fees could eat into her credit limit. After receiving 
     a card with a $250 credit limit from First Premier, she says, 
     she was immediately charged $170 in combined fees. When she 
     tried to use the card for the first time, she exceeded her 
     credit limit, triggering more fees.
       ``When they first send you the card, they automatically 
     charge you fees that eat up half of it,'' says Ms. Robinson.
       First Premier Bank's president and chief executive, Miles 
     Beacom, says the $95 processing fee doesn't violate the Card 
     Act because it is assessed before the account is opened. He 
     adds that the fee offsets the risk associated with offering 
     these cards to ``high-risk individuals.''
       Foreign-transaction fees are on the march as well. The 
     average fee for foreign transactions has jumped to 3% of the 
     transaction from roughly 2% in 2008, according to Ben 
     Woolsey, director of marketing and consumer research at 
     Creditcards.com.
       Some card holders are finding they don't even need to leave 
     their living room to get hit with a foreign-transaction fee. 
     Ruth Ann Sando, a small-business owner in Washington, says 
     she has been burned repeatedly on her Visa card issued by 
     Pentagon Federal Credit Union, the third-largest credit union 
     in the U.S.
       Ms. Sando used to do a lot of business with AbeBooks, an 
     online retailer. But she found that she was getting hit with 
     foreign-transaction fees even though her purchases were in 
     dollars. That is because while the seller and shipper were 
     based in the U.S., Abe, headquartered in Canada, provides the 
     forum for book sellers and collects a portion of the proceeds 
     from all sales.
       So late last year, Ms. Sando says, she decided to stop 
     buying from the site altogether. ``Not buying books is the 
     only way I can protest the fee,'' she says.
       ``The fee is legal, but all these fees circumvent the [Card 
     Act's] goal of clear and straightforward pricing,'' Mr. 
     Woolsey says.
       Pentagon Federal Credit Union says some of its cards carry 
     a foreign-transaction fee of 2% of the U.S. dollar amount of 
     the transaction.


                             Fighting Back

       While the credit-card landscape may seem littered with 
     landmines, there are ways to guard against some of the worst 
     pitfalls. The first and simplest: Make your card payments on 
     time.
       Second, say consumer advocates, people should dispute fees 
     directly with the issuer when they believe something is 
     amiss.
       ``Cardholders would be surprised at how much they can raise 
     hell and get a change,'' says Mr. Condon, who says he 
     immediately contacted Discover after the late charge appeared 
     on his statement.
       They might have to make repeated calls, however.
       ``While the Credit Card Act did make great strides in 
     protecting consumers, it in no way closed all avenues for 
     cardholders to get hit with fees,'' says Ms. Wu, from the 
     National Consumer Law Center. ``It's a first step.''

  Mr. DURBIN. Mr. President, I say to those who will be critical of the 
remarks I am about to make, this is not from some French Socialist 
journal; this is not from some left-leaning magazine; this is a news 
story in the Wall Street Journal this morning which is talking about 
what the credit card companies are doing.
  So the obvious question one would ask if you live in Illinois or any 
other place, for that matter, and which we should ask ourselves is, Are 
we powerless to stop this? Are we powerless to stop these banks, credit 
unions, and credit card companies from basically ignoring reform in the 
law, from finding ways to skirt the law and charge even more?
  Well, the answer is we are not. I will tell you why. Because last 
week President Obama signed into law the strongest consumer financial 
protections in the history of the United States. The bill, which was 
authored by Senator Chris Dodd, chairman of the Senate Banking 
Committee, and Congressman Barney Frank, his counterpart in the House, 
the Wall Street Reform and Consumer Protection Act included many 
provisions that will help consumers immediately--especially regarding 
mortgages and credit cards. Make no mistake, as this article tells us, 
the big banks on Wall Street are working overtime already to dream up 
ways to avoid this new law as well. The law will never keep up with 
their lawyers and accountants. They will always find a way around it.
  That is why the bill included something we have never had before in 
the United States: a Bureau of Consumer Financial Protection.
  This bureau has one responsibility: to make consumer financial 
markets work for American families, not just for the banks. The bureau 
will ensure that sellers of mortgages, credit cards, private student 
loans, pay-day lenders, and other types of financial products must 
compete for customers based on the quality of their products, rather 
than the number of tricks and traps they can hide in the fine print 
they stick behind your monthly statement.
  Here is the thing. This agency is only going to be as effective as 
the people who run it and work for it. That is even more true for a 
brandnew agency such as this one. The person who is chosen as the first 
leader will set the tone for the regulators for years to come, even 
decades.
  It is critical that the Bureau of Consumer Financial Protection be 
put in place with a director who is aggressive, intelligent, and 
understands the challenge they will face; a director who is fair, one 
who believes in the power of the marketplace but understands that 
markets work better if everybody participating in those markets 
benefits; a director who will listen to what bankers are saying but can 
see through them when they try to slant lending markets too far in 
their favor; a director who thinks, first and foremost, about how 
American families can thrive in today's complicated economy.
  Fortunately, there is a person who can fill that job effectively. Her 
name is Elizabeth Warren.
  Professor Elizabeth Warren first proposed the creation of an 
independent financial regulator to look out for consumers 3 years ago, 
in 2007. In 2008, she helped me draft a bill based on her idea. We 
called it the Consumer Credit Safety Commission back then.
  In the spring of last year, she worked to change the bill, and we 
renamed it the Financial Product Safety Commission.
  Last summer, when the Obama administration released its plan for 
reforming Wall Street, our idea was rechristened as the Consumer 
Financial Protection Agency.
  It is now officially called the Bureau of Consumer Financial 
Protection, and it is now the law of the land. Whatever the name, 
Professor Elizabeth Warren of Harvard Law School, more than any person 
in this country, was the driving force behind the creation of this 
agency.
  Years ago, Professor Warren made a name for herself when she wrote a 
book called ``The Two-Income Trap,'' in which she described how hard it 
is for working families to get by in today's economy. She taught a 
popular course at Harvard on bankruptcy and has written extensively on 
how difficult it is for many families to start over when their lives 
take a turn for the worse.
  She has most recently last served as a watchdog, a chairwoman of the 
congressional oversight panel for the Troubled Asset Relief Program, 
otherwise known as TARP. She has taken a look at the money--the 
taxpayer dollars--given to these banks to make sure we weren't cheated 
and to blow the whistle on banks that didn't do the right thing.
  She has done that and done it extremely well. For the past 3 years, 
she has advocated tirelessly for the creation of this agency. The 
purpose of this agency is to empower every single one of us, as 
consumers, to get the right information and not be tricked or deceived, 
so we can do the right thing for ourselves and our families and our 
small businesses.
  Throughout her work, a common theme has emerged: Government should 
work for the American people and not the other way around. Elizabeth 
Warren is the right person to head this new agency.
  Much has been written--some of it critical--on the prospect of 
Professor Warren being nominated as Director of this new consumer 
bureau. Wall Street banks anonymously argue to the media--and even to 
Senators--that she would restrict access to credit. Nonsense. The only 
types of credit she would restrict are predatory loans. That is just a 
smokescreen for saying the banks are going to face their 
responsibilities and perhaps not take all the profit they want at the 
expense of consumers who are deceived.
  Professor Warren has said publicly--and I believe her--that she 
doesn't begrudge banks making profits; they are in business. She would 
prefer--as I and I think most Americans would--that banks make money by 
providing American families with good products, good credit cards, good 
mortgages, and good student loans.
  The banks also argue she doesn't understand their business well 
enough to

[[Page S6621]]

regulate it. They are afraid of her. They know how smart she is and 
that she would not be teaching at Harvard Law School successfully and 
leading so many efforts forward for this country if she didn't have the 
skill and intelligence it takes.
  Professor Warren will bring to the bureau passion and compassion, a 
big-picture vision and nuts-and-bolts knowledge. She is the right 
person for the most important job in the country.
  I say to my wife and to anybody who read the Wall Street Journal this 
morning, with the right person at this new Consumer Financial 
Protection Bureau, help is on the way. We need to put into place 
someone who will blow the whistle on those who break the law, abuse the 
law, and engage in practices that deceive Americans and American 
families. We need somebody at that agency who empowers us, as 
consumers, to make the right decisions for our families. Elizabeth 
Warren, professor of Harvard Law School, is the right person.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, I rise to speak in support of the 
nomination of our Solicitor General, Elena Kagan, as Associate Justice 
of the Supreme Court of the United States.
  The power the Constitution gives the Senate to advise and consent to 
Presidential nominations is a very important one but never more 
significant than when we are called upon to respond to a President's 
nomination of a Justice to the U.S. Supreme Court because this 
nomination is for a lifetime to the Court, from which there is no 
appeal. It is the final arbiter of justice in our system of justice, in 
our system of government. So these are important moments, when we are 
called upon to respond to a President's nomination to the Supreme 
Court.
  I remember once, early on, after I came to the Senate, during a 
controversial nomination to the Supreme Court, and our late and truly 
great colleague, Robert C. Byrd of West Virginia, said something I will 
never forget. He said that, normally, when we consider whether to 
advise and consent to a President's nomination to a Federal position, 
we give, understandably, the benefit of the doubt to the nominee, the 
person whom the President has nominated; when it comes to the Supreme 
Court--Senator Byrd said and counseled--the benefit of the doubt should 
go to the Supreme Court because of the lifetime tenure of Justices of 
the Supreme Court and their beyond-appeal role in our system of 
government.
  I have that in mind by way of saying, beyond any doubt, I feel 
certain Elena Kagan, Solicitor General, will serve the cause of justice 
and our Nation very well as an Associate Justice of the U.S. Supreme 
Court.

  Those either in the galleries or watching the debate on C-SPAN may 
wonder, occasionally, when they hear us refer to the nominee as 
``general''--General Kagan. It reminds me of when I was privileged to 
be elected attorney general of Connecticut. I went to an orientation 
for new attorneys general and I walked in and somebody said, ``Hello, 
General.'' I turned around, thinking somebody was behind me. It was the 
first time I had been addressed that way. Solicitors General are 
referred to as ``general'' as well.
  So establishing the standard as I have, I would say General Elena 
Kagan possesses impressive academic and professional qualifications, 
with her broad range of experiences as a clerk for a Supreme Court 
Justice, a lawyer in private practice, a legal and policy adviser to 
President Clinton, a law professor at the University of Chicago, and 
then at Harvard, where she ultimately became dean, and most recently as 
Solicitor General of the United States, which will enable her to serve 
our Nation and the cause of justice well if--and I hope when--she is 
confirmed as an Associate Justice of the Supreme Court.
  General Kagan showed, on the day the President nominated her, that 
she understands the importance and unique importance of the Supreme 
Court. She said:

       The Court is an extraordinary institution in the work it 
     does and in the work it can do for the American people by 
     advancing the tenets of our Constitution, by upholding the 
     rule of law, and by enabling all Americans, regardless of 
     their background or their beliefs, to get a fair hearing and 
     an equal chance at justice.

  General Kagan then continued by complimenting retiring Justice John 
Paul Stevens, whose seat she will fill if confirmed to this position, 
for the ``distinguished and exemplary role'' Justice Stevens has played 
on the Supreme Court for the last 35 years.
  I wish to say that, in my opinion, the most significant thing about 
Justice Stevens' service has been his independence of mind, his single-
minded focus and commitment to the cause of justice because this is the 
branch of our government that must be beyond politics and even rigid 
ideology.
  The Founders, in all their genius, when they put together the form of 
the American Government, coming from England as so many of them did, 
worried about the autocratic power of the King, wanted to create a 
democracy and yet wanted to make sure there were checks and balances. 
The Supreme Court was set up as one of the three branches of our 
government that was not accountable to the people; its accountability 
was solely to the Constitution. I think Justice Stevens, whether you 
agreed with every decision he wrote or not--and I agreed with some but 
not others--always demonstrated an ability to transcend politics and 
ideology and put the requirements of justice and the law, as he saw 
them, above all else.
  I am confident General Kagan, as a Supreme Court Justice, will follow 
Justice Stevens' example. I predict today that, in the years ahead, if 
and when confirmed, Justice Kagan will surprise many people, including 
Senators who on this vote will vote for her and those who will vote 
against her. She will not be predictable. That is one of the best 
things I think we can say about a Supreme Court nominee. She will be 
judicial and independent-minded. She will serve the Constitution and 
the national interest, not any party or people or rigid ideology.
  I must say I have been encouraged in this view by the way in which 
General Kagan has carried out her duties as Solicitor General of the 
United States. She has consistently demonstrated her commitment to 
upholding the Constitution, as well as her understanding of and respect 
for the appropriate roles of Congress, the executive branch, and the 
courts. She has not shied away from difficult cases or taking difficult 
positions when she has come to the conclusion that those positions were 
demanded by the Nation's needs and by the law's requirements.
  I wish to cite one powerful example, to me, which I discussed with 
her when I met her on her rounds in the Senate; that is, her case 
before the U.S. Court of Appeals for the District of Columbia, in the 
case of Al Maqaleh v. Gates. It was a Federal district court judgment, 
where the court ruled it had jurisdiction to consider the habeas 
petitions of prisoners of war being held by the U.S. military at Bagram 
Air Force Base in Afghanistan. In other words, the court said that if 
we captured an enemy terrorist or soldier in Afghanistan and put them 
in the U.S. prison facility or detention facility at Bagram Air Force 
Base in Afghanistan, that individual could file a habeas petition 
before the Supreme Court of the United States in Washington to have his 
or her detention reviewed by our highest Court. To me it is an 
unbelievable decision and a harmful decision.

  The Solicitor General typically represents our government only in 
cases before the U.S. Supreme Court. I asked General Kagan why she got 
involved in this case. She told me that she felt so strongly about how 
harmful the District Court decision would be to our Nation's ability to 
succeed in the wars against radical Islamist extremism we are involved 
in now that she made this case the exception in which she felt it 
appropriate and necessary for her as Solicitor General to argue on 
behalf of the United States in the Court of Appeals, not just in the 
U.S. Supreme Court.
  I could not agree more with General Kagan's assessment of the 
importance of the case and wrongness of the District Court decision. I 
agree with her assessment of the merits of the case. I appreciate that 
she chose to get involved. And I was extremely pleased when the DC 
Court of Appeals agreed with the position argued by General Kagan and 
reversed the decision of the District Court. That, I think, tells us a

[[Page S6622]]

lot about the independence of mind and commitment to the higher 
national interests of General Elena Kagan.
  In reviewing the respective backgrounds of Justice Stevens and 
General Kagan as his proposed replacement, I was pleased to see some 
similarities in their careers. I suppose it is true of many nominated 
to the Supreme Court. They both have impeccable academic credentials. 
They both clerked for Supreme Court Justices at the beginning of their 
legal careers. They both then served in private practice, followed by 
times in academia and then the government.
  The important point I am making and what I believe would be a 
similarity between these two great Americans is that General Kagan, 
like the jurist she will be replacing, will be viewed at the end of her 
career as a Justice who put partisanship, politics, and ideology aside 
and put justice first.
  The PRESIDING OFFICER (Mrs. Gillibrand). The Senator has consumed 10 
minutes.
  Mr. LIEBERMAN. I, therefore, say in conclusion that I support Elena 
Kagan. I urge my colleagues to give her a strong vote of confirmation 
to be our next Associate Justice of the Supreme Court.
  I yield the floor. I suggest the absence of a quorum.
  The legislative clerk proceeded to call the roll.
  Mr. DORGAN. 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. DORGAN. Madam President, I have also come to support the 
nomination of Elena Kagan. She has an impressive background. I was very 
pleased with her nomination by the President for a lifetime term on the 
Supreme Court.
  I had the opportunity to meet with her in my office, and I found her 
engaging and interesting, with a lively sense of humor. I found her to 
be a very interesting person. I had the opportunity to interview and 
talk with a number of folks who have been nominated to the Supreme 
Court. She stands out to me.
  She has a very impressive background: bachelor's degree in history 
from Princeton; master of philosophy from Oxford; a law degree from 
Harvard. She has done a lot of things--associate White House counsel 
for President Clinton. She was a professor at Harvard Law School and 
then dean of the Harvard Law School. She was confirmed by the Senate as 
Solicitor General on March 19 of last year. I voted for that 
confirmation. I think she will make an excellent Justice of the Supreme 
Court.
  I want to say that some of the criticism of Elena Kagan has been that 
she does not have judicial experience. In other words, she has not been 
a judge. That is true, in fact. Forty of the 111 Supreme Court 
Justices, including Justices John Marshall, Louis Brandeis, Felix 
Frankfurter, and the previous Supreme Court Chief Justice William 
Rehnquist, had no judicial experience either. In many ways, that was 
considered a significant asset.
  My colleagues who now criticize Elena Kagan for not having judicial 
experience extolled the virtue of that very thing when the Senate was 
considering the nomination of William Rehnquist who similarly had no 
judicial experience.
  I find it a significant asset for Elena Kagan. She brings different 
kinds of experiences to the Federal bench, and I think she will make an 
exceptional Supreme Court Justice.
  I might say, every Solicitor General, the position Elena Kagan now 
occupies, since 1985, including Kenneth Starr and Ted Olson, have said 
that Kagan ``would bring to the Supreme Court a breadth of experience 
and a history of great accomplishment in the law . . . We support the 
nomination of Elena Kagan . . . and believe that, if confirmed, she 
will serve on the Court with distinction.'' That is from every former 
Solicitor General going back to the mid-1980s. That is, in my judgment, 
some support.
  The determination of who sits on the Supreme Court in this Nation is 
one of the most important decisions the Senate makes. It is a judgment 
by the President, first of all, to send a nomination to the Senate, and 
then the advise-and-consent responsibility of the Senate is to make a 
judgment about that nomination.
  The decisions the Court makes have a profound impact on the lives of 
the American people, have an impact on the questions of what kind of 
freedoms exist in this country. We have at this moment one of the most 
conservative courts we have had in a long time in this country, perhaps 
in this country's history the most conservative court.
  A recent study by Richard Posner, who sits on the Seventh Court of 
Appeals, and William Landes, University of Chicago law professors, 
ranked all 43 Supreme Court Justices who have served since 1937 on 
their ideology and their decisions. Their conclusion was that four of 
the five most conservative Justices since Franklin Roosevelt sit on 
this Supreme Court right now.
  I do not think we ought to be thinking of this in terms of 
conservative versus liberal. I only use that category because so many 
of my colleagues said it is very important to have a conservative 
Justice. What I want on the Supreme Court is a Justice who will use 
common sense in interpreting the Constitution and do so without an 
understanding that they are on one team or another.
  Frankly, it is disappointing not just to me but most Americans to see 
that the Supreme Court has become a court of nine Justices who break 
into teams: Our side, your side; five on one side, four on the other. 
That is not what we would expect of the Supreme Court.
  My hope would be that the Supreme Court would take a look at issues 
not as conservatives or liberals, but as Supreme Court Justices who 
have studied the law and who would make a commonsense judgment about 
what the Constitution of this country means.
  So often I find that the Supreme Court stands logic on its head. The 
recent decision in Citizens United is an unbelievable decision to me: 
that corporations should be treated as individuals for the purpose of 
campaign financing without any precedent or plain text basis. They 
overturned a statute by Congress because they said corporations are 
people.
  Oh, really? Most of us understand corporations are artificial people 
created by the State for the purpose of allowing an entity to be 
created, to sue and be sued, contract and be contracted with. But no 
one ever suggested corporations represent a real person. If so, I 
assume one of these days we will have corporations running for office, 
perhaps a corporate candidate for the Senate. We can have General 
Motors running against IBM. Get your money together because it is going 
to be expensive. Which desk in the Senate chamber will belong to which 
corporation?
  If corporations are, in fact, real people, as the Supreme Court has 
ruled, then it will not be long before we have that kind of political 
race in our country. It is an absurd decision.
  The 5-to-4 decision in the Court in Ledbetter v. Goodyear is another 
shocking example of standing common sense and a commonsense reading of 
the Constitution on its head. Lilly Ledbetter worked 19 years at 
Goodyear and had consistently gotten sterling, very high performance 
evaluations by her supervisors. Once she learned she had been paid much 
less than other workers who happened to be male--she learned this after 
19 years, by the way. For 19 years, she worked hard, got paid, and then 
discovered all of those years she had been paid much less than the 
male counterparts doing exactly the same job.

  She finally sued, and the Federal courts said: You are right; 
Goodyear, you have to make back payments. The appeals court then 
overturned it, and the Supreme Court ruled that this woman had to have 
taken action within 180 days of the discrimination beginning.
  The fact is, she could not have done that in the first 180 days. She 
did not have the foggiest idea they were mistreating her, saying: If 
you are a man, you get this salary, and if you are a woman, you get 
this salary for doing the same thing, working side by side. She did not 
discover they were mistreating her for 19 years.
  The Supreme Court did not care about that. They just said that if she 
did not pick it up in 180 days, sorry, out of luck, tough luck. It 
stands logic on its head once again.
  The fact is, the Supreme Court has a profound impact in terms of the 
way they interpret the Constitution of the

[[Page S6623]]

United States. What I have seen recently and certainly in the case of 
Citizens United--and I believe it is the case in Ledbetter v. 
Goodyear--the Supreme Court too often these days divides into teams. By 
the way, the team that seems to be winning is the team on the side of 
the powerful, the team on the side of the big interests, the team on 
the side of the corporate interests. That ought not be the way the 
Supreme Court operates.
  I came to support the Kagan nomination because I think she is someone 
with a facile, interesting mind who is going to bring a new spark to 
the debate among Justices about what this Constitution means. I do not 
know if she is a liberal or a conservative. I don't care very much. 
What I care is that we put some people on the Supreme Court we believe 
have the capability to make good decisions--decisions that will make 
life in this country better, that will reflect accurately the 
interpretation of the U.S. Constitution.
  I hope very much when the dust settles and the vote is taken that we 
will have a very strong vote in support of Elena Kagan to become the 
next Supreme Court Justice. I think her background, her skill, her 
capability will make her an outstanding Supreme Court Justice. I will 
be proud to vote for her nomination when we have that vote this week.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Madam President, Solicitor General Elena Kagan has been 
nominated to fill the upcoming Supreme court vacancy left by the 
retirement of Justice John Paul Stevens.
  I know of few, if any, responsibilities of the Senate that are more 
important than the confirmation process providing, in the terms of the 
Constitution, ``Advice and Consent'' to the nomination of an individual 
to serve for life on the U.S. Supreme Court.
  There are two constitutional responsibilities that are invoked every 
time a nominee is chosen. One is by the President of the United States. 
It is his prerogative to choose whomsoever he wishes. But that is not 
the end of it. The second constitutional duty that is invoked anytime a 
vacancy occurs and a nomination is made is that of the Senate to 
provide, again in the terms of the Constitution, ``Advice and Consent'' 
on the nomination. That is what we are engaged in doing now--in 
deciding whether that advice and consent should be, yes, she shall 
serve, she shall be confirmed or, no, she should not be confirmed.

  We know judges are different. In the words of the high school civics 
class, we are called the three branches of government, and all three 
serve different functions. But the role of the judge is entirely 
different from the role of a Senator or the role of the President 
because they are nominated and appointed to serve for life and 
protected from having to run for office and seek election. They are 
given a limited but very important role in our government; that is, to 
render impartial justice, to make decisions based on the law, not based 
on perhaps their own political or ideological preference or a political 
agenda.
  I think it is very important that this process be fair and dignified, 
and I commend not just the chairman of the Judiciary Committee, Senator 
Leahy, but the ranking member, Senator Sessions of Alabama, who is in 
the Chamber, for making sure this nominee got the kind of confirmation 
hearing in the Judiciary Committee that, frankly, she deserves and that 
every nominee deserves whether or not they are confirmed. But at the 
same time, we need to make sure in addition to a dignified and fair 
process that it is thorough and it is careful and it is comprehensive.
  It is vital, in my view, to recall the core principles that should 
guide the Senate in carrying out its constitutional duty because I 
think today there is more of a sense than there has been at any other 
time in my adult life that the Federal Government simply does not 
recognize any constraints imposed upon its authority under the 
Constitution. Frankly, I think there is a widespread feeling across the 
country that the Federal Government--the National Government--believes 
it is, in effect, the only government in our country anymore and that 
the States and local governments are just the servants of the National 
Government.
  But that isn't, of course, how our Framers of the Constitution 
conceived of this unique form of government known as federalism, where 
the Federal Government, under our Constitution, is a government of 
delegated--or sometimes it is called enumerated--powers, and all 
rights--or all power--not given to the Federal Government are reserved, 
under the terms of the tenth amendment of the Constitution, to the 
people and to the States.
  I am afraid that Washington, DC, and particularly this Congress at 
this particular time, seem to have that turned around. Unfortunately, I 
worry that a Supreme Court Justice who does not recognize the limited 
nature of the authority given to the Federal Government, and who isn't 
willing to enforce it, is not qualified to serve on the U.S. Supreme 
Court.
  As the Federalist Papers remind us in Federalist 78:

       The courts must declare the sense of the law; and if they 
     should be disposed to exercise will instead of judgment, the 
     consequence would equally be the substitution of their 
     pleasure to that of the legislative body.

  That is a little archaic--that kind of language, of course, going 
back a couple of centuries--but, basically, it means the people who are 
responsible for making policy are those who are elected and who have to 
stand before the people and ask for their vote; namely, the Members of 
Congress or the Chief Executive, the President, and not judges who are 
completely insulated from any political accountability for their 
decisions.
  The only reason the Constitution gives that sort of lifetime tenure 
and protection from the voters is because under the Constitution judges 
are not supposed to be making policy but merely enforcing the law that 
is made by the Congress and the President. It is very important that 
the power to make new laws belongs to the people--we the people--and 
not to unelected judges.
  When the Supreme Court presumes to create new rights, the Justices 
take away the power of the people to govern themselves through their 
elected representatives. It is completely turning democracy on its 
head--this idea of saying judges ought to be making policy even though 
unelected and serving with lifetime tenure and substituting their view 
for the views of the people and their elected representatives. That is 
not the way our democracy is supposed to work.
  Some have disagreed over the years and embraced this concept of 
judicial activism. According to those who subscribe to this view, the 
Constitution is somehow not a written document that we can read and 
understand what is in it, but it has become a ``living document,'' 
which has changed over time, even though the words on the paper remain 
the same. Unfortunately, this notion of a living document often is an 
excuse for judges to reach a desired outcome or a result in a lawsuit. 
This activist view takes the power to make and change the law away from 
we the people and gives that power to unelected judges who are 
insulated from any kind of accountability for their decisions, and it 
lets the Supreme Court decide what rights we have and what rights we 
don't have, which is the opposite of what the Framers thought they were 
doing when they wrote our constitution and when the States ratified it.
  The question raised by every Supreme Court nomination is whether the 
nominee believes in this activist vision for judges or whether, in 
contrast, they believe in a traditional role for judges. The question 
is, Will the nominee enforce a written constitution and laws passed by 
Congress or will they presume to be able to invent new rights according 
to their subjective view of the law? Will the nominee enforce a written 
constitution or will he or she see that it is their job to change the 
Constitution to match their policy preferences when they do not like 
the outcome?
  To be confirmed, I believe a nominee must establish that he or she 
should embrace the role of a traditional vision of a judge. I believe 
that is absolutely critical because someone who presumes to say: After 
I get confirmed, I am going to call cases the way I see them; and if I 
don't like the way the Constitution calls for those cases to be 
decided, or the way Congress has written

[[Page S6624]]

the law, I am going to substitute my opinion for that and I am going to 
twist the law to reach a particular result--in my view, a judge who 
presumes to be a lawmaker by twisting the law to accomplish a 
particular result, in effect, becomes a lawbreaker. A judge who 
presumes to be a lawmaker, I believe, is a lawbreaker.
  Elena Kagan, our nominee, is obviously enormously bright. She has 
excellent academic credentials and has had an accomplished career. Her 
testimony before the committee, however, did not persuade me that she 
agrees with this traditional role for a judge. In fact, her testimony 
about judicial philosophy is open to multiple interpretations and was 
intentionally vague. In her own responses following the hearing, for 
example, Solicitor General Kagan indicated that she would decide cases 
based on not the written Constitution, not the laws passed by Congress, 
but based on her ``constitutional values.'' But she acknowledged that 
her constitutional values can point in different directions at 
different times and claimed that she would exercise prudence and 
judgment in resolving the tension between them.
  Well, that all sounds pretty fine and well, but what that means is 
she would not agree that her decisions should be confined to the 
written Constitution that has been ratified by we the people and the 
laws passed by the elected representatives of the American people, for 
which we are electorally accountable every election. She presumes, it 
seems to me, by her vague and subjective language, to suggest that her 
constitutional values--which point in different directions depending on 
the case--and the fact that she says she would exercise prudence and 
judgment in resolving tensions is somehow a substitute for taking an 
oath to uphold the Constitution and laws of the United States. That is 
simply unacceptable.
  In voting on a Supreme Court nominee, I think we need more certainty 
than the simple assurance that a nominee would exercise their judgment. 
Of course, we expect for the nominee to exercise judgment, but that is 
not sufficient. We need a Justice who will follow the law, someone who 
will follow and enforce the Constitution of the United States. You know 
what. If we don't like the Constitution as written, and we think it 
needs to be amended, well, under article V of the Constitution there is 
a process to do that. And you know what. If we don't like the law 
Congress makes, well, Congress, of course, is free to change it. But if 
we the people still don't like the way Congress writes the law, and 
they refuse to respond to the will of the people, we have a right to 
replace Members of Congress. That is the way a democracy is run, not by 
a judge dictating to us what he or she thinks is good for us.

  In voting on a nominee, I think we need more assurance from the 
nominee than she will simply exercise her judgment and she will 
exercise prudence in resolving tensions in the constitutional values.
  Solicitor General Kagan also testified the Constitution is written in 
general terms that enable the courts to change the law in response to 
``new conditions and new circumstances''--changes that she testified 
occur ``all the time.''
  She says that because the Constitution is written in general terms, 
the courts are empowered to change the law in response to new 
conditions and new circumstances--changes that she testified ``occur 
all the time.''
  Well, I have an alternative suggestion. Rather than ceding to an 
unelected Supreme Court or a Federal judiciary, why isn't it that we 
the people have the right to petition Congress to change the law? That 
is the way democracies are supposed to work. It is the job of a judge 
to enforce that law, and if we don't like the way the Constitution is 
written, well, we have passed 27 amendments during the course of our 
history amending the Constitution. But that reserves the right to we 
the people and does not cede that authority to any unelected, lifetime-
tenured judge.
  I was also troubled by a couple of other specific areas and her 
interpretation of the law--one that has to do with the power of the 
Federal Government. I mentioned that a moment ago. Under the commerce 
clause of the Constitution, the Supreme Court has previously basically 
given the Federal Government almost limitless powers.
  We have seen that at play in the debate over the individual mandate 
in the health insurance bill that was recently passed, with an 
unprecedented reach of Federal power into your living rooms, where we 
are sitting on our couches, and which says: You know what. The Federal 
Government demands that you purchase a government-approved health 
insurance policy. If you don't, we are going to penalize you.
  That power is unprecedented. That is why it is being litigated now.
  But Solicitor General Kagan did not seem to recognize that the 
Federal Government's powers are one of enumerated powers, delegated by 
the States and by the people, and all rights not delegated were 
reserved to the people and to the States.
  I was also troubled by her testimony with regard to the second 
amendment--the right to keep and bear arms. She did say the recent 
decisions in Heller and McDonald are ``settled law,'' but I worry that 
her interpretation of settled law means until there are five new 
Justices who take a look at that settled law and just decide to change 
it.
  Unfortunately, we saw the same sleight of hand with Justice 
Sotomayor's testimony regarding the second amendment. Last year, she 
testified that Heller was settled law. But last month, she joined in a 
dissenting opinion in McDonald urging it be overturned, saying she did 
not believe the second amendment conferred a fundamental individual 
right to keep and bear arms. I think the second amendment, and all of 
the amendments of the Constitution, in the entire Constitution, are too 
important to leave to such an empty promise.
  Madam President, I see my friend and colleague from Utah here to 
speak. Let me just say that the last thing I wanted to address--and I 
will plan on coming back, assuming we have enough time to talk about 
it--is, frankly, the stigma that Ms. Kagan and the folks at Harvard 
imposed on our men and women of the military by banning them from the 
Career Services Office at Harvard Law School and, in effect, 
stigmatizing them and causing people to disrespect them, even though 
they were merely applying the law that Congress passed and over which 
they had no control.
  I am very troubled by that, and I will come back to talk about that 
more as time permits. But for these reasons I have given, and others I 
will expand upon later, I oppose the nomination.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Madam President, I compliment the distinguished Senator 
from Texas. There is hardly anybody in this body who can equal the 
expertise and experience he has, not only as an attorney general in his 
State but also as a justice on the Texas Supreme Court. With that 
experience, he is someone we should all listen to. I thank the 
distinguished Senator for his comments.
  I rise today to discuss the appointment of Elena Kagan to be 
Associate Justice of the U.S. Supreme Court. The Senate's role of 
advice and consent is a check on the President's power to appoint--not 
a substitute for it. At the same time, the Senate's role must be more 
than an empty formality or a mere rubberstamp.
  I have examined Ms. Kagan's record, I participated in her entire 
hearing before the Judiciary Committee, and I have listened to 
supporters and opponents both in Utah and across the country.
  I can say this: I lectured at Harvard when she was dean at Harvard. I 
appreciated the way I was treated while I was there. It was clear she 
probably did not agree with some of the things I was saying, but she 
was courteous and decent. I like her personally. But if I apply the 
standard I have consistently used for judicial nominees, that standard 
leads me to conclude that I just cannot support her appointment.
  Qualifications for judicial service include both legal experience, 
which summarizes the past, and judicial philosophy, which describes the 
future. Two categories of legal experience stand out among the 111 men 
and women who have served on the U.S. Supreme Court. Two-thirds of 
them, including every current Justice and the

[[Page S6625]]

Justice Ms. Kagan has been nominated to replace, had previously been a 
judge. The 39 previous Justices who lacked judicial experience had an 
average of 21 years of legal practice. In other words, Supreme Court 
Justices have had experience behind the bench as a judge, before the 
bench as a lawyer, or both.
  Ms. Kagan has neither. She was a junior associate in a large law firm 
for only 2 years. She has never tried a case, never argued before any 
appellate court before becoming Solicitor General just last year. I am 
sure the reason they made her Solicitor General was to give her some 
experience so they could do what they have now done and nominate her to 
the Supreme Court. Although Harvard law students must contribute at 
least 40 hours of law-related pro bono service as a condition of 
graduation, Harvard's former Dean Kagan appears to have done none at 
all.
  Ms. Kagan's experience is, instead, academic and political. One of my 
Democratic colleagues said here on the floor that Ms. Kagan's best 
qualifications for the Supreme Court are her experience making policy 
and her ability to build consensus. I, for one, believe that the line 
between the political and the judicial is already too blurred. While 
the political or policy mindset focuses on achieving desirable results, 
judges must focus on following the right process.
  Without any real experience or grounding in the actual practice of 
law, Ms. Kagan's experience makes me more, not less, skeptical of her 
suitability for the Supreme Court. It puts even more emphasis on her 
judicial philosophy, which is the second and more important 
qualification for judicial service.
  As I said at the confirmation hearing for Justice Ruth Bader Ginsburg 
in 1993, there must be clear and convincing evidence that a nominee 
understands the proper role of the judiciary in our system of 
government. What is the proper role of judges in our system of 
government? One of my predecessors as Senator from Utah, George 
Sutherland, served on the Supreme Court for 16 years. He distinguished 
between interpreting the Constitution and amending it in the guise of 
interpretation. Confusing the two, he wrote, converts ``what was 
intended as inescapable and enduring mandates into mere moral 
reflections.'' These are fundamentally different judicial philosophies 
that identify inherently different relationships between the judge and 
the law.
  The central confirmation question before us today is what kind of a 
Justice Ms. Kagan would be. The answer begins with the President who 
nominated Ms. Kagan. When he was a Senator, President Obama said judges 
decide cases based on their deepest values, their core concerns, and 
what is in their heart. As a Presidential candidate, he said he would 
appoint judges who have empathy for certain groups. As President, he 
has nominated judges who believe they may find the Constitution's 
meaning in such things as social practices, evolving norms, practical 
consequences, and even foreign law. President Obama has clearly taken 
sides in the judicial philosophy debate.
  Ms. Kagan has identified a general and a specific source of evidence 
for us to examine. She told the Judiciary Committee generally that 
``you can look to my whole life for indications of what kind of judge 
or justice I would be.'' And she told one of my Judiciary Committee 
colleagues specifically that we can learn a lot about her ``by seeing 
how I did when I worked at the White House.''
  In graduate school, Ms. Kagan wrote that the Supreme Court may 
overturn previous decisions because, as she put it, ``new times and 
circumstances demand a different interpretation of the Constitution.'' 
She wrote that judges may ``mold and steer the law in order to promote 
certain ethical values and achieve certain social ends.'' Ms. Kagan was 
describing a judicial philosophy guided by moral reflections rather 
than by enduring mandates.
  When asked about this thesis at her hearing, Ms. Kagan said, ``Let us 
just throw that piece of work in the trash, why don't we?'' I cannot do 
that. While every piece of a nominee's record must be viewed in its 
proper context, I cannot simply ignore whatever may raise questions or 
doubts about Ms. Kagan's judicial philosophy. It was Ms. Kagan, after 
all, who told us to examine her whole life for evidence of the kind of 
Justice she would be. This obviously includes writings such as her 
Oxford graduate thesis.
  Writing as a law professor several years later, Ms. Kagan agreed that 
in most cases that come before the Supreme Court, the Justice's own 
experience and values are the most important elements in the decision. 
If that is too results-oriented, Ms. Kagan wrote, so be it. Well, to be 
candid about it, it is indeed too results-oriented and echoes the same 
activist approach Ms Kagan embraced in her graduate thesis.
  While Ms. Kagan has not herself been a judge, she has singled out for 
particular praise judges who share this activist judicial philosophy. 
In a tribute she wrote for her mentor, Justice Thurgood Marshall, for 
example, she described his belief that the Supreme Court today has a 
mission to ``safeguard the interests of people who had no other 
champion.'' Ms. Kagan did more than simply describe Justice Marshall's 
judicial philosophy but wrote: ``And however much some recent Justices 
have sniped at that vision, it remains a thing of glory.''
  Justice Marshall was a pioneering leader in the civil rights 
movement. He blazed trails, he empowered generations, he led crusades. 
But he was also an activist Supreme Court Justice. He proudly took the 
activist side in the judicial philosophy debate. Some on the other side 
have suggested that honestly identifying Justice Marshall's judicial 
philosophy for what it is somehow disparages Justice Marshall himself. 
I assume that this ridiculous and offensive notion is their way of 
changing the subject because they cannot defend an activist, 
politicized role for judges.
  In 2006, when she was dean of the Harvard Law School, Ms. Kagan 
praised as her judicial hero Aharon Barak, who served for many years on 
the Supreme Court of Israel. Aharon Barak has been described by U.S. 
circuit judge Richard Posner, one of the leading lights on the 
judiciary in this country, as an aggressively interventionist judge who 
has ``created a degree of judicial power undreamt of by our most 
aggressive Supreme Court Justices'' and for whom ``the judiciary is a 
law unto itself.'' Ms. Kagan did not simply describe Justice Barak's 
judicial philosophy or praise him as a person; she called him ``the 
judge or justice in my lifetime whom I think best represents and has 
best advanced the values of democracy and human rights, of the rule of 
law, and of justice.''
  My friends on the other side of the aisle try to spin away Ms. 
Kagan's praise of Justice Barak by noting that Justice Antonin Scalia 
once warmly introduced him. But while Justice Scalia said he had 
``respect for the man,'' he made clear that he and Justice Barak had 
``fundamental philosophical, legal and constitutional disagreements.'' 
Ms. Kagan, in contrast, said that Justice Barak was her judicial hero 
and represented the rule of law better than any other judge. It appears 
that the very first time she distanced herself from his judicial 
philosophy was at her confirmation hearing.
  When she was dean, Ms. Kagan had opportunities to choose between her 
personal views and the law. Federal law, known as the Solomon 
Amendment, requires that military recruiters have equal access to 
students as other employers. Harvard protested the don't ask, don't 
tell law regarding military service by homosexuals by allowing military 
recruiters access not through its Office of Career Services but through 
the Harvard Law School Veterans Association, a private group with no 
office, no staff, and no budget. The Defense Department told Harvard in 
2002 that this policy did not comply with the Solomon Amendment.
  Ms. Kagan, who had very publicly denounced the military service law, 
joined a lawsuit challenging the Solomon Amendment. Within 24 hours of 
the decision of the U.S. Court of Appeals for the Third Circuit 
enjoining it, she again banned military recruiters from the career 
office even though the ruling did not apply to Harvard, which is in the 
First Circuit. In other words, she reinstated a policy that she knew 
violated Federal law and even kept that policy in place when the Third 
Circuit stayed its own injunction. Ms. Kagan could have opposed the law 
in various ways but chose to do so in a

[[Page S6626]]

way that undermined the military and defied Federal law. Her personal 
views drove her legal views.
  Ms. Kagan also told us to examine her service in the Clinton 
administration, a period during which she has said she acted as a 
policy adviser rather than as a lawyer. She was, for example, a key 
player behind the Clinton administration's extreme abortion policy, 
including its defense of the barbaric practice of partial-birth 
abortion. In a 1996 legislative strategy memo, she labeled as a 
disaster a proposed statement by a key medical group that there exists 
no circumstances in which partial-birth abortion is the only option for 
doctors to take. That was the organization representing the 
obstetricians and gynecologists. She drafted and persuaded that group 
to adopt language with a much different political spin. At her hearing, 
Ms. Kagan offered the implausible claim that she was merely trying to 
ensure that the medical group accurately expressed its own medical 
opinion. In other words, the disaster she identified was a PR disaster 
for the medical group, not a political disaster for the Clinton 
administration. That is too hard to believe, especially in light of 
evidence that Ms. Kagan also sought to persuade the American Medical 
Association to change its similar conclusion that partial-birth 
abortion is not medically necessary. Political objectives appear to 
have trumped medical science.
  Let's understand what partial-birth abortion is, this barbaric 
practice. It is where they turn the child around, even a child capable 
of living on its own outside the womb, until its head is coming first. 
Then they ram scissors or some other sharp instrument into the back of 
the skull, suck out the brains, then pull the baby out and say it is 
not a human being. I don't know anybody who should not consider that 
tremendously offensive and barbaric.
  In May 1997, after President Clinton had vetoed the Partial Birth 
Abortion Ban Act, Ms. Kagan wrote a memo recommending that he support a 
sham ban offered by Democratic Senators. Everybody here knew it was a 
sham. She argued that this step might attract votes from Senators who 
otherwise would vote to override President Clinton's veto. Since the 
substitutes would not pass--she knew they would not--partial-birth 
abortion would remain legal. Whether you are for or against abortion, 
most people find that practice barbaric.
  Significantly, however, Ms. Kagan noted that the Office of Legal 
Counsel had concluded that these substitute bans were unconstitutional 
under the Supreme Court's Roe v. Wade decision. There is no indication 
that she disagreed with this conclusion. The point is that Ms. Kagan 
urged a purely political position on abortion that was at odds with 
what the Clinton administration then believed the Constitution 
required. That is something that really bothered me and I do not think 
she was forthcoming about it at the hearing. It especially bothered me 
because it looked once again like politics trumped the law.
  Ms. Kagan's hearing did nothing to temper the activist picture that 
emerges from her record. She chose an approach to answering questions 
that was far different from what she once argued was necessary for the 
Senate properly to evaluate nominees and educate the public. I asked 
three times, for example, if she had written the 1996 memo I discussed 
a minute ago. Mind you, the memo has her name on it and includes a page 
of her own handwritten notes. After three tries, Ms. Kagan would say 
only that it was in her handwriting which I suppose leaves open the 
possibility that it was forged. It was certainly her prerogative not to 
give Senators anything meaningful during her hearing, but it leaves the 
rest of her record as the basis for determining what kind of Justice 
she would be.
  Other Senators will discuss in more depth additional troubling issues 
raised by her record. These certainly include positions she has taken 
and arguments she has made that signal a sweeping, unprecedented view 
of Federal Government power. At the hearing, for example, I questioned 
her about the troubling position she took before the Supreme Court in 
the Citizens United v. FEC case. She argued that the first amendment 
allows the Federal Government to determine who may say what, when, and 
in what manner about political candidates. She argued that the 
government may ban certain print or electronic books, movies, and 
pamphlets that mention candidates close to an election. Political 
speech is the speech perhaps most protected by the Constitution. Yet 
she argued that the government may silence unions, for-profit 
corporations, nonprofit groups and even tiny mom-and-pop businesses, if 
they organize legally as a corporation. Thankfully the Supreme Court 
sided with freedom of speech.
  As if that breathtaking degree of Federal power were not bad enough, 
Ms. Kagan also worked in the Clinton administration to weaken and limit 
other individual rights such as the second amendment right to keep and 
bear arms. In her hearing, Ms. Kagan refused to acknowledge any real 
limits on the Federal Government's power, which the Supreme Court has 
already expanded far beyond anything America's Founders intended, to 
regulate everything imaginable in the name of interstate commerce.
  I will summarize. Ms. Kagan's academic and primarily political 
experience make critical the need for clear and convincing evidence 
that she is committed to the proper role of judges in our system of 
government. The critical confirmation question is the kind of Justice 
Ms. Kagan would be. Will the Constitution control her, or does she 
believe she may control the Constitution? Looking where she directed me 
to look, I believe the evidence shows she embraces an essentially 
activist view of judicial power.
  This is a grave decision and it is about more than simply one person. 
The liberty we enjoy in America requires that the people govern 
themselves and that, in turn, depends upon the kind of Justices who sit 
on the highest Court in the land.
  George Washington said in his Farewell Address:

       The basis of our political systems is the right of the 
     people to make and to alter their constitutions of 
     government. But the Constitution which at any time exists, 
     till changed by an explicit and authentic act of the whole 
     people, is sacredly obligatory upon all.

  Judges who bend the Constitution to their own values, who use the 
Constitution to pursue their own vision for society, take this right 
away from the people and undermine liberty itself.
  As my colleagues can see, I am very worried about this nomination. I 
never voted against a Supreme Court nominee before when I voted against 
now Justice Sonia Sotomayor but I think I have been proven right in a 
number of instances. Let me mention one. She basically said that the 
Heller case on the right to keep and bear arms was settled law. Yet 
within a year or so, she voted that the right to keep and bear arms is 
not a fundamental right.
  I hope that soon-to-be Justice Kagan proves me wrong. I hope that she 
will use her legal mind and the abilities she has to uphold rather than 
tear down the Constitution. I hope she will do what the Founding 
Fathers expected all Justices on the Court to do. But like Justice 
Sotomayor, I think the evidence about her judicial philosophy shows 
that I am right.

       I yield the floor.

  The PRESIDING OFFICER (Mr. Kaufman). The Senator from Ohio.
  Mr. VOINOVICH. Mr. President, I rise to speak on the nomination of 
Solicitor General Elena Kagan to be an Associate Justice of the U.S. 
Supreme Court. I will not support General Kagan's nomination. I did not 
come to this decision lightly. As I said last August during the debate 
on Justice Sotomayor, the role of the Senate in the nomination of a 
Supreme Court Justice is to give its advice and consent on the 
President's nomination, with the Senate to judge whether an individual 
is qualified based on a number of factors. Among these factors are the 
nominee's education, legal experience, prior judicial experience, 
written record, judicial temperament, commitment to the rule of law, 
and overall contributions to the law. Based on my review of Elena 
Kagan's record and using these factors, I have determined General Kagan 
at this time does not meet the criteria for membership on our Nation's 
highest Court.
  The President deserves deference in his nominations and, of course, 
Presidential elections have a direct impact on the makeup of our 
judiciary; that is to say, elections do have consequences.

[[Page S6627]]

But Senate confirmation should not be a simple mechanical affirmation 
of the President's selection, especially when the nominee will enjoy a 
lifetime appointment. A Senator is duty bound to conscientiously review 
the qualifications of the President's nominee and make an independent 
assessment of the nominee's qualifications.
  General Kagan is well educated, intelligent, bright, and engaging, 
and advanced quite rapidly in her career of teaching and law school 
administration. But one must ask, is that enough? I believe it is not. 
I believe a judicial nominee must have substantial experience in the 
law, especially when the nominee is seeking a lifetime appointment to 
the highest Court in the land.
  After reviewing her background, I believe General Kagan does not have 
that relevant experience. General Kagan is the first nominee to the 
Supreme Court with no prior judicial experience since 1971, almost 40 
years ago. While I do not believe a lack of judicial experience should 
bar one from serving on the Supreme Court, I note that reviewing prior 
judicial service is obviously the easiest way to assess a nominee's 
fitness for the Court. This lack of judicial experience does not 
prevent her nomination, but in my opinion it does shift the burden to 
the nominee to demonstrate her relevant experience.

  For example, when the Senate considered Justice Sotomayor's 
nomination, there were over 1,000 prior opinions one could review to 
decide if she was ready for the job. With General Kagan, there are 
none. When I asked her to name opinions she worked on with Justice 
Marshall with which she disagreed, she stated she could not remember 
any individual opinion she worked on, much less whether she disagreed 
with Justice Marshall on any of them. She could not remember.
  During our meeting, General Kagan noted her service as Solicitor 
General, another job I did not think she was qualified to hold, and 
said it was relevant because she was the Solicitor General. I agree it 
is relevant, but her time as Solicitor General has been too short. 
Since President Kennedy's Solicitor General, Archibald Cox, only one 
confirmed Solicitor General has served for a shorter period of time 
than General Kagan.
  General Kagan argued her first case before the Supreme Court less 
than a year ago, and now we are going to confirm her as a member of 
that Court?
  If we base her qualifications on her earlier legal experience, her 
experience is particularly limited. General Kagan worked for 2 years as 
a practicing attorney. Justices Rehnquist and Powell, the last two 
Supreme Court nominees without prior judicial experience, each spent 
many years in the active practice of law. Justice Rehnquist practiced 
in Arizona for over 16 years. Justice Powell was a partner in a major 
Virginia law firm for over 25 years and in practice for 38 years. 
General Kagan has 2 years of experience in private practice and 1 as 
Solicitor General.
  I also think it is worth noting that the independent Congressional 
Research Service has found that, on average, the 39 Justices who lacked 
prior judicial experience had over 20 years of experience in the 
practice of law. General Kagan's experience pales in comparison.
  During Justice Sotomayor's confirmation, I spoke about how President 
Obama's standard for selecting judicial nominees based on what was in 
their heart flew in the face of meritocracy--flew in the face of 
meritocracy. We, as a nation, aspire to hire people for jobs based on 
their skill, not on where they are from or who they know. Justice 
Sotomayor, in addition to her 17 years of total service on the trial 
and appellate benches, was in private practice for 8 years and was a 
district attorney for 4 years. Justice Sotomayor's experience as a 
lawyer and a judge, her judicial temperament, and the fact that her 
opinions were within the judicial mainstream gave me confidence that 
she had the relevant experience to sit on the Supreme Court.
  Because there is such a limited record with General Kagan and because 
she has gone out of her way, quite frankly, not to answer questions, I 
have no idea what she will do on the bench and whether she will be able 
to suppress her own values to apply the law. The fact is, we really do 
not know much about her views.
  Frankly, I have been surprised by some of my colleagues who attempt 
to compare her to the famous Justice Brandeis, another Justice with no 
prior judicial experience. Justice Brandeis practiced the law for 
almost 30 years before his nomination, much of his practice being pro 
bono in his later years. Furthermore, Justice Brandeis is widely 
regarded as one of the great legal minds of not just his time but of 
American history, having developed numerous areas of modern law from 
scratch. Yet, again, General Kagan pales in comparison.
  In my meeting with General Kagan, I asked her about how little 
writing she had published, and she responded that she had more academic 
writing than other members of the Supreme Court. This is factually 
incorrect and misleading. First, this is incorrect. Justice Scalia is 
widely published with numerous articles and books. Justice Ginsburg 
went so far as to learn Swedish to coauthor a book on Swedish judicial 
procedure. And Justice Breyer was one of the most foremost authorities 
on administrative law, with many books and articles to his name before 
joining the Court. Second, it is misleading because each Justice 
publishes hundreds of pages a year in the form of opinions, greatly 
eclipsing General Kagan's academic production.
  There are over 800 Federal judges, many of whom clearly have the 
experience, intelligence, and legal skill to serve on our Supreme 
Court. Additionally, if one believes, which I do not, that the Federal 
judiciary is somehow out of touch with our society, thousands, if not 
tens of thousands, of State court judges are out there with lengthy 
judicial records, many ready to serve on the Supreme Court. I think 
back to Justice Sandra Day O'Connor, who was on the supreme court of 
the State of Arizona for 8 years before she became a member of the 
Supreme Court.
  As an aside, only a former law professor would think that the dean of 
a law school is somehow more in touch with everyday people than a 
judge. Every day, a judge is presented with the facts of everyday life 
and must apply them to the law. A dean at a law school, surrounded by 
professors earning hundreds of thousands of dollars a year and donors 
worth millions and students soon to enter into a professional career, 
never gets to see everyday life and is never faced with the factory 
worker, the farmer, or any other hardworking blue-collar Americans. How 
is a law school dean more in touch--more in touch--with everyday 
people?
  Some of my colleagues would like to have had a less liberal person 
nominated by the President. My position is, the President will surely 
nominate a liberal. The most important question is, Is that liberal 
nominee qualified to be a member of the Supreme Court? I would argue 
that General Kagan has been nominated based on her friendships and 
personal attachments with President Obama and others at the White 
House, not based on objective qualities that would indicate she is 
qualified to be a member of the U.S. Supreme Court.
  In closing, lack of judicial experience should not be an absolute bar 
to serving on the Supreme Court. However, Solicitor General Kagan not 
only lacks judicial experience but has limited experience as a 
practicing attorney with only the last year as Solicitor General and 2 
years as a junior associate making up her entire practice.
  Additionally, General Kagan has had an extremely limited written 
record--I mean limited written record--which should make all of us 
unsure as to what sort of Justice General Kagan will be.
  For these reasons, I cannot in good conscience support the nomination 
of General Kagan to be a member of the U.S. Supreme Court.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. SESSIONS. 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. SESSIONS. Mr. President, a number of comments have been made 
about Ms. Elena Kagan's actions at Harvard in barring the military from 
utilizing or having access to the Career Services Office and asking the 
veterans

[[Page S6628]]

group--that was not able, as they said--to somehow fill that role.
  I will take a few minutes, as we have a few minutes left, to deal 
with one of the arguments I have heard my colleagues repeat; that, 
well, she did not reduce recruiting, therefore, no harm, no foul. I do 
not agree. There was a foul and there was a harm. But even if there had 
not been a harm, there was a foul.
  It was very wrong to blame the U.S. military for the don't ask, don't 
tell policy, and very, very, very wrong to blame some young officer who 
was there to recruit people to serve in the JAG Corps of the U.S. 
military, perhaps having just returned from combat duty in Iraq or 
Afghanistan, and to be told: You can't come in the front door of the 
building. You can't use the recruiting services because we don't like 
your policy.
  But it was not the military's policy; it was the Congress's policy. 
It was President Clinton's policy. He signed the bill. I do not believe 
that Ms. Kagan complained to President Clinton when she was on his 
staff for 5 years and he signed the bill. Was there any protest to him? 
No. Her protest was lodged, and the discrimination was directed against 
the men and women in uniform who defend our country, who had nothing to 
do with the policy.
  That is a fact, and I do not think it is a matter that should be 
lightly dismissed. ``Oh, the recruiting didn't go down,'' they say. 
Well, let's just talk about that. They said she merely reinstated 
Harvard Law's pre-2002 policy, which forced the military to work 
through this veterans association, and recruiting did not suffer. But 
that is not true.
  Harvard's pre-2002 policy--before she became dean--had obstructed 
military recruiting. As an internal memorandum authored by the 
recruiting chief of the Air Force JAG Corps in 2002 states--this is 
what the chief of recruiting for the Air Force JAG said:

       Career Services Offices are the epicenter for all employer 
     hiring activities at a law school. . . . Without the support 
     of the Career Services Office, we are relegated to wandering 
     the halls in hopes that someone will stop and talk to us. . . 
     . [D]enying access to the Career Services Office is 
     tantamount to chaining and locking the front door of the law 
     school--as it has the same impact on our recruiting efforts.

  The military's ``after action reports'' from pre-2002 recruiting 
efforts organized through the veterans association on campus show mixed 
results, but recruiting clearly improved after her predecessor, Dean 
Clark, granted the military equal access through the Career Services 
Office. This is what the Air Force said:

       Since Harvard's policy change, the Air Force has . . . had 
     very positive responses from a number of students. . . . [I]n 
     the 16 months since Harvard's change in policy, we have 
     attracted at least four Harvard students, when in the prior 
     twelve years, we recruited a total of only nine.

  That is while the discrimination was in effect.

       The statistics reveal that our recruiting efforts have 
     greatly improved since the change in policy by Harvard to 
     comply with the Solomon Amendment. We only assessed 2 Harvard 
     Law students in the 1990s.

  This is not accurate, what we have been hearing. Then she reversed 
that policy and went back to the policy of discrimination. The reports 
show it obstructed their recruiting efforts. The chief of recruiting 
for the Air Force JAG Corps was repeatedly blocked from participating 
in Harvard's spring 2005 recruiting season, after Ms. Kagan changed the 
policy, saying this:

       Harvard is playing games and won't give us an OCI [On-
     Campus Interviewing] date; their official window for employer 
     registration has closed. Their recruiting manager told me 
     today that she's still ``waiting to hear'' whether they'll 
     allow us.

  The chief of Air Force JAG recruiting also recounted a conversation 
with Harvard's dean of career services after the close of the 
recruiting season, when you are supposed to be recruiting--they missed 
the whole season--this is what he says, talking about the dean.
  The PRESIDING OFFICER. The 1-hour time of the minority has expired.
  Mr. SESSIONS. Mr. President, I don't see anyone here--I ask unanimous 
consent to speak for 1 additional minute.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. The dean of career services told the Air Force JAG:

       He stated that the faculty had still not decided whether to 
     allow us to participate in on-campus interviews. . . . I 
     asked him if I could at least post a job posting via their 
     office and he said no.

  The Army was blunt in their afteraction report:

       The Army was stonewalled at Harvard. Phone calls and e-
     mails went unanswered and the standard response was--``We're 
     waiting to hear from our higher authority.''

  That certainly would appear to be Dean Kagan, who had reversed the 
policy, personally.
  This is what the veterans group said when Dean Kagan reversed the 
policy and said: We want you to help take care of the military. We are 
not going to let them in our office. They are not worthy to be in our 
office. This is what they wrote and sent an e-mail to all the students:

       Given our tiny membership, meager budget, and lack of 
     office space, we possess neither the time nor the resources 
     to routinely schedule campus rooms or advertise extensively 
     for outside organizations as is the norm for most recruiting 
     events. . . . [Our effort] falls short of duplicating the 
     excellent assistance provided by the HLS Office of Career 
     Services.

  To claim that 2005 had increased recruiting is inaccurate. The 2005 
class at Harvard would have been recruited during the time the military 
enjoyed full access of the career services office before she reversed 
the policy, not in the spring of 2005, a mere 3 months before 
graduation. They were counting the graduates, not people who signed up. 
The recruiting has not been shown to increase after this effort.
  Finally, I would note: What was the purpose of all this? Why did they 
have this policy? It was to harm and hamper the U.S. military in their 
effort to recruit on campus. Apparently, it was effective in reducing 
their ability. They had a direct intent to punish the military for a 
policy the military did not establish but Congress and President 
Clinton established and it was wrong then and it is wrong now.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SESSIONS. I thank the Chair and I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Ms. KLOBUCHAR. Mr. President, I am so honored to come to the floor 
with a number of women Senators to discuss the President's nomination 
of Solicitor General Elena Kagan to be the Associate Justice on the 
U.S. Supreme Court.
  As is the Presiding Officer, I am a member of the Senate Judiciary 
Committee, and we both had the opportunity to question Elena Kagan and 
to listen to her brilliant and insightful responses. Everyone heard 
her, and no matter how anyone is voting on this nomination--although it 
is hard for me to understand how they could oppose her--I think there 
was very much consensus on this idea that she knew what she was doing, 
that she has done every job that she has had very well, that she has 
confronted very difficult situations, and that she has always been a 
leader and someone who can bring consensus. She consistently 
demonstrated the quality that some of us had already seen in her 
records; that is, of pragmatism and reasonableness and a consensus 
builder.
  So I will save my remarks until later because I have been joined by 
the Senator from New York, Mrs. Gillibrand, who is from Elena Kagan's 
home State. While she may have worked in Massachusetts for quite a 
while, she actually came from New York. It is an honor to have Senator 
Gillibrand, who is also an attorney, joining us today.
  I yield for Senator Gillibrand.
  The PRESIDING OFFICER. The Senator from New York.
  Mrs. GILLIBRAND. Mr. President, I thank the Senator from Minnesota 
for her leadership, for her guidance, for her distinguished career, and 
for her service on the Judiciary Committee. It is so meaningful to all 
of us to have her ability to review these candidates in such depth.
  I am so proud to stand in support of Solicitor General Kagan's 
nomination to the U.S. Supreme Court. With his decision, President 
Obama has chosen an individual of the highest caliber, a women with an 
enormous history of achievement, a history of service and, perhaps most 
importantly, a history of bridge building.
  Elena Kagan is widely regarded as one of the Nation's leading legal 
scholars. She is a stalwart defender of the Constitution, and through 
her sharp intellect, steadfast integrity, sensible

[[Page S6629]]

judgment, and extraordinary work ethic, Elena Kagan has made it clear 
she is eminently qualified to serve as a U.S. Supreme Court Justice.
  Dean of Harvard Law School, magna cum laude from Harvard Law, editor 
of the Harvard Law Review, and summa cum laude from Princeton, these 
are just some of the many accolades she obtained during her vast and 
distinguished career.
  Throughout the course of this nomination process, it has been made 
abundantly clear that Solicitor General Elena Kagan has a profound and 
exceptional understanding of the Constitution and our system of law. 
Unfortunately, it appears that some of my colleagues are determined to 
criticize Elena Kagan regardless of these facts. They can no longer 
find partisan or ideological fodder by which to create a straw man of 
opposition, so they are now questioning her intellect, her clarity of 
mind, and her temperament. It is deeply concerning to me that my 
colleagues would dismiss the judgment of every Solicitor General of the 
past 25 years and dismiss the views of law professors from all across 
the United States and even sitting Supreme Court Justices who have 
suggested that Elena Kagan is eminently qualified to sit on the Court.
  These distinguished legal experts from across the country and across 
the ideological spectrum say Elena Kagan is not only an intellectual 
giant, but she is as qualified to serve on the Nation's highest Court 
as any of her other predecessors. Every Solicitor General over the last 
quarter century--Democrats and Republicans--wrote a letter of support 
for her nomination as Solicitor General, noting her brilliant 
intellect, her candor, and the ``high regard in which she is held by 
persons of a wide variety of political and social views.''
  The support of Miguel Estrada, Ken Starr, and Ted Olson, along with 
the support of some of my Republican colleagues such as Senator Lindsey 
Graham, all speak to her ability to build bridges and to find common 
ground. These are the traits we need in a Justice when so many 
decisions right now are narrowly being decided at the 5-to-4 margin.
  An attorney with over two decades of experience working in all three 
branches of the Federal Government, Kagan's breadth of experience will 
bring diversity to a Court consisting entirely of former judges. Many 
of the Justices on both sides of the aisle are quite fond of Elena 
Kagan from her time as Solicitor General and have commented on how her 
distinct professional background is a welcome contribution to the 
Court.
  Based on her record of achievement, it is clear Elena Kagan possesses 
the temperament that will distinguish her as a consensus builder on a 
deeply divided Court.
  Narrow 5-to-4 decisions by a conservative majority have become the 
hallmark of the Roberts Court. These decisions have often been 
overreaching in scope and have repeatedly ignored settled law and 
congressional intent. For example, in the Citizens United case, the 
Court not only disregarded the extensive record compiled by Congress 
but abandoned established precedent. Solicitor General Kagan's unique 
ability to build coalitions will be very helpful in bridging this very 
serious divide.
  Since the announcement of her nomination, I know more than a few of 
my colleagues have struggled to find a viable reason to object to her 
nomination. The bottom line remains that there has yet to be a credible 
reason to oppose this outstanding confirmation.
  I look forward to enthusiastically casting my vote in support of 
General Kagan's nomination and confirmation to the Supreme Court of the 
United States. I urge my colleagues to join me and support her 
nomination as well.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Ms. KLOBUCHAR. Mr. President, I thank the Senator from New York for 
that enthusiastic endorsement. I like how she took on some of these 
criticisms that have been lodged against Solicitor General Kagan. I 
also understand that at least one of my colleagues who spoke out in 
opposition has stated that, in his words: ``I believe she does not have 
the gifts and qualities of mind or temperament that one must have to be 
a Justice.'' Well, anyone who sat through those hearings or watched 
them on TV, as Senator Gillibrand has pointed out, would have to 
disagree. Anyone would have seen an incredibly smart, intellectually 
engaged person who answered Senators' questions astutely and whose 
energy never seemed to flag. Neither did her sense of humor, I will 
add. She had immediate recall about every single case or constitutional 
doctrine that she was asked about, and to say she doesn't have the gift 
or quality of mind is simply ridiculous.
  This is a woman who is a trailblazer: the first woman dean of Harvard 
Law School, first woman Solicitor General. To say she does not have the 
gifts or the qualities of mind to be a Justice is nothing short of 
ridiculous.
  I next will yield for someone who knows something about having a good 
temperament and a good quality of mind, the Senator from New Hampshire, 
who is also a trailblazer in her own right: the first woman to serve as 
both a Governor and a Senator, Mrs. Jeanne Shaheen of New Hampshire.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mrs. SHAHEEN. Thank you very much, to my colleague, Senator 
Klobuchar, and a special thanks for bringing us together this afternoon 
to speak on this important nomination.
  I am very pleased to once again be able to come to the floor and 
speak in support of the confirmation of Elena Kagan to be the next 
Justice of the U.S. Supreme Court. I am happy to join Senators 
Klobuchar, Gillibrand, Mikulski, and Hagan to support this excellent 
candidate for the High Court.
  The members of the Senate Judiciary Committee did a thorough job in 
vetting Ms. Kagan, and I thank them all for their hard work. I think 
the hearings they held on her nomination revealed three things; first, 
that Elena Kagan is a person of good character; second, that she is 
someone who understands and respects the rule of law and the role of 
courts in our democracy; third, that she is indeed qualified to be a 
Supreme Court Justice. I believe the President chose wisely when he 
nominated her.
  Back in June, after the nomination, I spoke about Ms. Kagan's 
impressive list of professional accomplishments, so I am not going to 
repeat them this afternoon. It is clear Elena Kagan has thrived in a 
number of settings and that she will bring a diverse set of experiences 
and abilities to the Court. In her rise to the top of the legal 
profession, Ms. Kagan gained practical experience that forced her to 
evaluate the impact of laws on people. She also has a track record of 
building bridges across the ideological spectrum, something I saw 
firsthand when I was the director of the Institute of Politics at the 
Kennedy School at Harvard and she was dean of the Harvard Law School. 
She had that reputation on campus as someone who could work with 
everyone. These are critical skills for a Justice, and I am glad we 
have a Supreme Court nominee before us who has a variety of real-world 
experiences and has not been isolated only within the judicial system.
  Perhaps most impressively, in her latest role as Solicitor General, 
Ms. Kagan has served as the representative of the American people 
before the Supreme Court. She has represented us forcefully in complex 
cases, including ones that dealt with major issues, such as our ability 
to conduct the war on terror and the amount of influence that big 
businesses should have in our elections. As is the case for every 
attorney who regularly appears in court, she won some and she lost 
some.
  But above all, Ms. Kagan has shown she is capable of analyzing the 
law at the level required by the Nation's highest Court. She has the 
talent and the intellect to join the Court as a Justice. I think that 
is something on which most of us can agree. Unfortunately, the politics 
that have come to surround judicial confirmations in modern times mean 
that Ms. Kagan's qualifications to serve on the Court are just one 
piece of this debate. I wish this weren't the case.
  These proceedings should force us to take a hard look at the role our 
Founders intended for the Senate in the confirmation process. When we 
provide advice and consent on judicial nominations, Senators are not 
supposed to be substituting their individual political judgments for 
those of the President.

[[Page S6630]]

We are collectively supposed to be checking that a nominee is 
qualified, that a nominee falls somewhere in the mainstream of legal 
philosophy, and that a nominee respects the rule of law and understands 
that judges are not meant to be politicians.
  A few weeks ago, Senator Lindsey Graham, as my colleague from New 
York, Senator Gillibrand, alluded to earlier, gave a powerful reminder 
of this when he spoke at the Judiciary Committee's final hearing on Ms. 
Kagan. I appreciated especially his reference to Alexander Hamilton's 
words in Federalist Paper No. 76: The Senate should have a ``special 
and strong reason for the denial of confirmation.'' We should remain 
focused on that standard, keep politics to a minimum, and really strive 
to conduct an evenhanded review of nominees.
  Prior to joining the Senate, I had the privilege of serving as 
Governor of the State of New Hampshire. New Hampshire is one of those 
States where judges are not elected but appointed by the Governor. Once 
appointed, they can serve until age 70. So having been in the position 
of appointing judges, I fully understand that making lifetime 
appointments to our courts is a very solemn responsibility.
  Knowing that, I believe the President has made an excellent 
selection. In Elena Kagan, we have been presented with a nominee who is 
a loyal American, an upstanding individual, and a supremely talented 
lawyer. Lawyers are, by definition, legal advocates for others. It is 
to be expected that, as a lawyer, Elena Kagan may have advocated 
certain positions with which we may not agree. That, however, does not 
disqualify her from being a judge. It almost goes without saying that 
her record presents no ``special and strong reason'' to vote against 
confirmation. These facts have been recognized by conservatives both in 
this body and outside of it who are willing to drop political rhetoric 
and speak candidly. This includes Senator Graham as well as my own 
senior Senator from New Hampshire, Judd Gregg. I hope more of my 
colleagues from across the aisle will follow their lead.
  I intend to proudly cast my vote in favor of Elena Kagan's 
confirmation, and I am confident that, as a Justice, she will serve 
this country with honor and distinction.
  I yield back to my colleague from Minnesota.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Ms. KLOBUCHAR. Mr. President, I thank the Senator from New Hampshire, 
my neighbor in the Chamber. I thank her for her fine remarks.
  I was listening when she talked about Senator Graham's comments. I 
truly believe that was a moment of leadership, where basically he said 
he had spent a lot of time in the last 2 years trying to elect a 
different person for President, but President Obama won and he 
respected his nominee and that his job was to look to see if that 
person was qualified to be on the Supreme Court. Despite political 
differences--and he didn't agree with everything she said--he said his 
job was to see if she was qualified. He said at the hearing, which I 
will never forget, that he was proud to be supporting her.
  I imagine the Senator from New Hampshire has had similar experiences 
in her State with having to grapple with those kinds of things when 
appointing judges.
  Mrs. SHAHEEN. That is correct. Like the Senator from Minnesota, I am 
certainly pleased to see people who have been willing to come out and 
take a leadership position and say: Even though we understand the 
nominee may not be one who is supported by all of the Members of our 
party, we still believe she is qualified, and we will support her.
  Ms. KLOBUCHAR. One thing about Elena Kagan: When you look at her 
series of jobs, you realize she has been in the arena as a manager, a 
teacher, an adviser, a consensus builder, and a lawyer. In every job, 
she has worked very hard and has done very well.
  Her work on the front lines tells me she has the practical experience 
in thinking about the impact of the law and policies on ordinary 
people, and I think sometimes that is missing in some of these 
decisions. There is a case I dwell on involving prosecutions and what 
kind of evidence can come before the court when you are dealing with 
some of the DNA tests, and I disagree with the recent Court decision 
that actually wasn't decided on ideological grounds but I believe was 
decided in an impractical way. I believe Solicitor General Kagan will 
bring that kind of practicality to the Court. When you are involved in 
considering the nitty-gritty details of different policies, when you 
are actually in the game as a decisionmaker, as she has been, you have 
to figure out when to compromise and when to hold firm. You have to 
know what the consequences of your recommendations will be.
  As a law school dean, Elena Kagan was widely credited with bringing 
together a faculty that was rife with division. Whether she was helping 
recruit talented professors from across the political spectrum or 
later, when she was working with Senators from both parties on tobacco 
legislation, she forged coalitions and found resolution between 
seemingly intractable parties.
  It strikes me that it takes a pretty extraordinary person who, after 
working in the Clinton administration, still gets a standing ovation 
from the conservative Federalist Society; who inspires a group of 600 
law students, who can be a bit cynical, to show up for a rally wearing 
``I love Elena'' T-shirts; someone who earned the respect of the law 
professors she worked with, regardless of their ideology, a group that 
I would say, as I said in the hearing, can be somewhat fearless in the 
face of supervision.
  In sum, she has had a lot of practical experience reaching out to 
people who hold very different beliefs, and that is increasingly 
important on a very divided Supreme Court. I believe that is why, when 
you look at the past, all the previous Solicitor Generals from the past 
25 years, under Democratic and Republican administrations, support 
Elena Kagan's confirmation. This practical experience is also why she 
has the support of the National District Attorneys Association, which I 
used to belong to in my previous job. They actually wrote about her, 
saying that the National District Attorneys Association believes 
Solicitor General Kagan's diverse and impressive life experiences will 
be a welcome addition to the Court in fashioning theory that will work 
in practice.
  One of the things that I think show the practicality of her and how 
she responded to our questions is when I asked her about the metaphor 
Chief Justice Roberts made famous at his confirmation hearing. I asked 
what she thought about the idea that judges were like umpires who just 
need to ``call balls and strikes'' and whether that was a useful 
metaphor. She gave an interesting and insightful response. She said the 
metaphor is useful in some respects but maybe not in others. It is 
useful because judges have to be fair and neutral like umpires and 
judges have to be aware that they have a powerful but limited role--
that they can't legislate from the bench, they aren't elected 
officials. But she also said the metaphor has its limits if it suggests 
that judging is some kind of ``robotic enterprise,'' if it makes people 
think judging is an easy, automatic kind of thing because issues are 
always clear-cut. That isn't right, and it definitely isn't right at 
Supreme Court level.
  Cases that come before the Supreme Court, I say, are by their very 
nature not clear-cut or they would not have ended up there. What is 
necessary is good judgment. We have to look for nominees who are going 
to bring that kind of good judgment to the Court.
  I see I have been joined by the Senator from North Carolina, Mrs. 
Hagan, which rhymes with the name of our nominee, Solicitor General 
Kagan. We are pleased to be joined by Senator Hagan.
  We have now had four women Senators here today in support of 
Solicitor General Kagan's nomination. We are also well aware that if 
she is confirmed, we will have three women on the Supreme Court when 
the Court goes into session in the fall--something that has never 
happened in the history of the United States.
  The PRESIDING OFFICER. The Senator from North Carolina.
  Mrs. HAGAN. Mr. President, I am here today to speak in support of 
Solicitor General Elena Kagan's nomination to be an Associate Justice 
of the Supreme Court of the United States. Solicitor General Kagan's 
background

[[Page S6631]]

demonstrates that she is an extremely well-qualified nominee and has a 
brilliant legal mind. She has the utmost respect for precedent and 
believes in fidelity to the law. I believe she will make our Nation 
proud as a Justice on the Supreme Court.
  I have always said I do not believe there should be any one litmus 
test for judicial nominees. We have to look at a nominee's record in 
its entirety. Solicitor General Kagan's record is nothing short of 
remarkable. With over 20 years of legal experience and government 
service, she has distinguished herself throughout her career with the 
highest integrity and sound judgment.
  In the 220-year history of the Supreme Court, 111 Justices have 
served on the bench. Yet only three have been women. It took almost two 
centuries--close to 200 years--before the first woman, Justice Sandra 
Day O'Connor, was confirmed to the Supreme Court.
  Solicitor General Kagan's professional achievements are clear. Let me 
highlight a few of her triumphs that hold historical significance as 
well as personal significance for me and many women across America. She 
was the first woman to serve as dean of Harvard Law School. She was the 
first woman to be appointed as U.S. Solicitor General. When confirmed, 
she will become, as Senator Klobuchar just said, the fourth woman to 
serve as an Associate Justice on the U.S. Supreme Court. For the first 
time in history, the Supreme Court will have three women serving at the 
same time. Women in America can take pride in Solicitor General Kagan's 
achievements, learn from them, and set their goals just as high.
  Elena Kagan has a compelling personal story. She was born into a 
family of Russian-Jewish immigrants. Her mother was a public school 
teacher, and her father was a tenants' lawyer. She inherited a strong 
work ethic and a focus on education. She graduated summa cum laude from 
Princeton University and received a master's degree in philosophy from 
Oxford University's Worcester College and a law degree from Harvard Law 
School, where she was supervising editor of the Harvard Law Review.
  She went on to clerk for Judge Abner Mikva on the U.S. Court of 
Appeals for the District of Columbia and then for Justice Thurgood 
Marshall on the Supreme Court. She also became active in her community, 
demonstrating her strong desire to serve others.
  In the years following her time as a clerk, Solicitor General Kagan 
practiced law and began her long career in academia as a professor of 
law and later as a dean. In addition, she worked under two Presidents--
first under President Clinton as an Associate Counsel and as a Deputy 
Assistant for Domestic Policy and now under President Obama as 
Solicitor General of the United States.
  Her confirmation hearings were a testament to her overwhelming 
qualifications to serve on the Supreme Court. I believe members of the 
Judiciary Committee saw in Solicitor General Kagan the same qualities 
President Obama saw: fairness of mind, supreme intellect, and an 
unsurpassed devotion to the law and to our system of government.
  Some opponents have sought to stir up controversy by quoting 
Solicitor General Kagan out of context, trying to suggest she will not 
be impartial. However, she has made it clear that her background does 
not influence her interpretation of the law.
  If Senators are not persuaded by her statements to the Judiciary 
Committee, then they should be by her remarkable, impartial, 24-year 
legal career.
  As Solicitor General Elena Kagan has said:

       I think a judge should try, to the greatest extent 
     possible, to separate constitutional interpretation from his 
     or her own values and beliefs. In order to accomplish this 
     result, the judge should look to constitutional text, 
     history, structure, and precedent.

  With respect to the military, let me say I am proud to represent the 
most military-friendly State in the Nation, and I have the fullest 
confidence in Solicitor General Kagan's respect and admiration for our 
men and women in uniform.
  She has said that she respects and, indeed, reveres the military. Her 
father was a veteran. One of the great privileges of her time at 
Harvard Law School was dealing with the wonderful students there who 
had served in the military and students who wanted to go into the 
military. She always tried to make sure she conveyed her honor for the 
military, and she always tried to make sure the military had excellent 
access to their students.
  Veterans at Harvard Law wrote:

       Kagan has created an environment that is highly supportive 
     of students who have served in the military . . . and under 
     her leadership, Harvard Law School has gone out of its way to 
     highlight our military service.

  Solicitor General Kagan's sensible attitude toward following the law 
and her ability to objectively evaluate all angles of the Constitution 
has resulted in high ratings and endorsements by numerous 
organizations. The American Bar Association unanimously found Solicitor 
General Kagan to be well qualified, which is the highest rating the ABA 
gives to judicial nominees.
  Solicitor General Kagan has an impressive list of law organization 
endorsements and supporters, including the National Association of 
Women Judges, the Women's Bar Association of the District of Columbia, 
the National Minority Law Group, the Constitutional Accountability 
Center, the Hispanic National Bar Association, the Leadership 
Conference on Civil and Human Rights, and the National Association for 
the Advancement of Colored People.
  Solicitor General Kagan has also been endorsed by a group of law 
school deans, who stated:

       Her knowledge of law and skills in legal analysis are first 
     rate. Her writings in constitutional and administrative law 
     are highly respected and widely cited. She is an incisive and 
     astute analyst of law; with a deep understanding of both 
     doctrine and policy . . . Elena Kagan has, over the course of 
     her career, consistently exhibited patience, a willingness to 
     listen, and an ability to lead, alongside enormous 
     intelligence.

  Former Solicitors General recently wrote a letter, including North 
Carolinian Walter Dellinger. In it they said:

       Elena Kagan would bring to the Supreme Court a breadth of 
     experience and a history of great accomplishment in the law . 
     . . The Constitution gives the President broad leeway in 
     fulfilling the enormously important responsibility of 
     determining who to nominate for a 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 the 
     distinction.

  I thank and congratulate the members of the Judiciary Committee for 
holding an extraordinarily civil and open Supreme Court nomination 
process. I commend President Obama for selecting an extremely well-
qualified nominee who will serve this country with distinction. Based 
on my conversations with the nominee, her statements at her 
confirmation hearings, and my review of her record, I intend to support 
her confirmation when it is voted on, hopefully later this week. I urge 
my colleagues to do the same.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Ms. KLOBUCHAR. Mr. President, I thank the Senator from North Carolina 
for her comments. I like how she pointed out how Solicitor General 
Kagan has received support from so many people on both sides of the 
aisle, and then also Solicitor General Kagan's support for the 
military.
  I remember one of the most touching points of the hearing--that long 
and laborious hearing--was when Elena Kagan spoke about reading a 
letter from a student who had been at her law school in which, after 
she was nominated, he actually wrote a letter to the newspaper. He 
served in Iraq, and he wrote a letter about how fair she was to him and 
her strong support for him as a soldier. She said it was the only 
moment during the whole leadup to the hearing, with all those things 
that happen, that she said she shed some tears. I will never forget 
that moment in the hearing.
  As we consider this nomination, I want to reflect on how far we have 
come.
  I see I have been joined by the dean of the women Senators, Senator 
Mikulski from Maryland.
  When Sandra Day O'Connor graduated from law school more than 50 years 
ago, as the Senator from Maryland knows, the only offer she got back 
then after she graduated high up in her class from Stanford Law School, 
the only offer she got at a law firm was as a secretary. Justice 
Ginsburg faced similar obstacles. When she entered

[[Page S6632]]

Harvard, she was only one of nine women in a class of more than 500. 
One professor actually asked her to justify taking that place in that 
law school class from a man.
  I know we learned during the hearing that Solicitor General Kagan is 
well aware of the strides women have made. In a 2005 speech, quoting 
Justice Ginsburg, she described a student resolution at the University 
of Pennsylvania Law School. This resolution would have introduced a 25-
cent per week penalty on all students without mustaches.
  The women who came before Elena Kagan to be considered by the 
Judiciary Committee helped blaze that trail for Elena Kagan--people 
such as Justice Ginsburg, Sandra Day O'Connor, and Sonia Sotomayor. 
Although Elena Kagan's record stands on her own, she is also, to borrow 
a line from Isaac Newton, ``standing on the shoulders of giants.''
  All the women Senators I know--both Democratic and Republican--always 
feel they are standing on the shoulders of giants, maybe somewhat short 
giants, when they see the dean of the women Senators, Senator Mikulski 
from Maryland, who has entered the Senate Chamber.
  The PRESIDING OFFICER. The Senator from Maryland.
  Ms. MIKULSKI. Mr. President, I thank the Senator from Minnesota for 
her kind words but also her leadership in terms of a leadership roll on 
the Judiciary Committee in the usual due diligent way she went about 
looking at Ms. Kagan's record, becoming an advocate for her and now 
urging us on the floor to speak on her behalf.
  Also on behalf of myself and the people of Maryland, we extend our 
condolences to her on the passing of her mother. It is a tribute to 
Senator Klobuchar that she is here today doing her duty. But from what 
I have heard about her mother, that is exactly where she would want her 
to be and exactly with those of us who are speaking today.
  I come today in strong support of Elena Kagan. I am of the generation 
when a woman on the Court was going to be viewed as a novelty. I 
remember very well when Ronald Reagan nominated Sandra Day O'Connor and 
the world and the United States of America was abuzz: Wow, a woman is 
going to go on the Court. She went to the Court, and I think history, 
legal scholars, and the American people think she did a great job.
  Then came Ginsburg, Sotomayor, and now Kagan. We are at the point now 
where women are being taken seriously--they are being put forth for 
high positions in government--and are no longer viewed as a novelty. We 
never wanted to be novelties. We want to do the job we are either 
elected to do or we are being recommended to do.
  I can tell my colleagues that Elena Kagan brings that right stuff of 
the women who are currently on the Court, and Sandra Day O'Connor. She 
wants to be known and respected for what she will bring to the Court.
  For us women, the reason we are advocating for her is not about 
gender but about the legal agenda before this Supreme Court. We want to 
have a Justice on that Court who is extremely qualified but brings a 
strong commitment to civil rights, to equal justice--someone who brings 
not only legal scholarship but an independent voice.
  Ms. Kagan is extremely qualified in these areas. Her record 
demonstrates an understanding of how the Court affects the lives of 
ordinary Americans. She clerked for Justice Thurgood Marshall, another 
distinguished Marylander, someone who served on the Court, a 
trailblazer in civil rights and a trailblazer on the Court.
  Much was made during the Judiciary Committee hearings about her 
clerking for Marshall and somehow or another that was not a good thing. 
I thought it was a fantastic thing for us in Maryland who revere 
Thurgood Marshall for his brilliance, his tell-it-like-it-is legal 
style, who brought scholarship and yet street corner savvy out from 
some of the meanest streets in Baltimore to the Court. We thought it 
was great. We think Justice Thurgood Marshall was a great member of the 
Supreme Court. And they think it is great Kagan mentored and learned 
under him.
  During her tenure as dean of Harvard Law School, she, again, not only 
developed the best faculty but made sure there were legal clinics to 
help the poor, the left out, the marginalized, but she also wanted to 
make sure that Harvard was to ensure a more diverse student body.
  In the face of this current Court that increasingly is on the side of 
big corporations rather than with the little guy or the little gal, we 
need a Justice such as Kagan who will understand what is going on in 
our communities.
  I take my advise-and-consent responsibilities very seriously. It is 
one of the most important jobs we have as Senators, and it is one I 
approach with thorough deliberation.
  I look at three criteria for the Supreme Court: absolute integrity, 
judicial competence and temperament, and a commitment to core 
constitutional principles. I want someone who is committed to the whole 
Constitution, the entire Constitution, the basic body of the 
Constitution and every single one of its amendments. There is a whole 
crowd in the Senate who only seems to like the second amendment. I like 
all of them, and I am particularly devoted to the first one and the 
14th one.
  Every day, the Supreme Court will make decisions that transcend 
generations. But today we have a Court that has an increasing 
willingness to favor corporate interests over the voice of people at 
the community level.
  We also have a Court that seems to be increasingly out of touch with 
the American people. We want to be able to reassure that we have a 
member of the Court who understands this.
  During this current Court's deliberations, I was appalled by the 
famous Lilly Ledbetter case, the wonderful woman who worked at Goodyear 
for 19 years and was a victim of pay discrimination. She sued Goodyear, 
and the case made it all the way to the Supreme Court. In appeal after 
appeal, she won. But, oh, the big guys with the big guns and the big 
bucks kept appealing, but she persisted. And then before the Court she 
was turned down. It was so appalling that Justice Ginsburg from the 
bench asked Congress to take action. We did. But we should not be the 
Congress to overturn Supreme Court decisions because they trample on 
the rights of people, because they trampled on the rights of a woman to 
get equal pay for equal work, trampled on the rights of a woman not to 
face retaliation in sexual harassment and humiliation when she tried to 
speak up for herself on the floor of the factory or on the courtroom 
floor.
  I believe we need someone on the bench who understands the needs of 
the people but, most of all, understands the laws of the United States 
of America and loves this Constitution--the entire Constitution of the 
United States of America.
  I am here today because of the Constitution. The first amendment 
enabled me to speak up and organize and be able to make it here. There 
was another amendment of the Constitution that enabled the direct 
election of the Senate. There is this whole other crowd out there in 
the community that wants to overturn that. I am here because the 
American people insisted in a constitutional amendment that women have 
the right to vote. Another constitutional amendment took it away from 
the State legislature and put it in the hands of the American people.
  I love the Constitution. I love every single amendment of the 
Constitution. And I want somebody on the Supreme Court who feels the 
way I do.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Ms. KLOBUCHAR. Mr. President, I thank the Senator from Maryland for 
her fine words. She is someone who knew the Court before there were any 
women on that Court. She has seen many changes. I thank her for her 
work.
  To break the glass ceiling, we have now been joined by one of our 
male colleagues, after hearing from five female colleagues. But we are 
going to let him speak. We have been joined by the senior Senator from 
the State of New Mexico. We are honored to have Senator Bingaman here 
to speak about Solicitor General Kagan.
  Mr. BINGAMAN. Mr. President, I yield myself 5 minutes off the 
Democratic time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BINGAMAN. Mr. President, let me first just commend all my 
colleagues for their eloquent statements

[[Page S6633]]

in support of Solicitor General Elena Kagan's nomination, and I join 
them in that support of her nomination to be an Associate Justice of 
the U.S. Supreme Court.
  I strongly believe Solicitor General Kagan has the skill set, the 
intellect, and the experience necessary to be an exceptional Justice. 
She has a diverse legal background, with a distinguished career in 
government and academia, and she has served as our Nation's top lawyer 
before the Court. After reviewing her record, as Senator Klobuchar 
pointed out, I believe Senator Hagan also--and others have pointed out 
in their comments as well--the American Bar Association unanimously 
voted that she was ``well qualified'' to serve on the Court, which is 
the highest ranking the American Bar Association bestows.
  I have also met with Ms. Kagan and closely followed her confirmation 
hearings before the Senate Judiciary Committee. She clearly 
demonstrated that she has the right temperament for this position and 
that her legal views are well within the mainstream of judicial thought 
in this country. Ms. Kagan also affirmed her commitment to interpret 
the law with fidelity and demonstrated that she understands how the 
decisions of this High Court have a very real impact on the lives and 
liberties of Americans.
  Ms. Kagan's wide range of experience will serve the country well. She 
has served as a faculty member at the University of Chicago Law School, 
as a former dean of the Harvard Law School, as a clerk to former 
Justice Thurgood Marshall, as a White House aide to former President 
Bill Clinton, and in her current position as Solicitor General of the 
United States. In her current position as Solicitor General, she has 
filed approximately 100 briefs and argued six cases before the Supreme 
Court. Ms. Kagan has demonstrated sound judgment and has exhibited 
great skill in the cases she has handled before the Supreme Court.
  She has been lauded by individuals across the political spectrum for 
her ability to build consensus and for her respect for those with 
differing views. For example, she has received support from eight 
former Solicitors General from both parties, including Kenneth Starr 
and Ted Olsen. At Harvard she worked to hire a faculty representing 
diverse political views, including conservative faculty members in 
order to ensure that students received a broad perspective on the 
issues they were studying.
  While Ms. Kagan has a great deal of legal experience, much has been 
said about her lack of judicial experience. Although she has not served 
as a judge, Ms. Kagan is widely respected in the legal community. She 
will bring needed diversity to the bench with respect to her legal 
background. It is important to note that about 40 of the 111 previous 
Supreme Court Justices who have served did not have judicial experience 
prior to serving on the Supreme Court, including, I would point out, 
former Chief Justice William Rehnquist.
  I strongly believe Ms. Kagan has the qualifications necessary to be 
an excellent Justice of the Supreme Court. I urge my colleagues to 
support her nomination.
  Madam President, I yield the floor.
  The PRESIDING OFFICER (Mrs. Hagan). The Senator from Minnesota.
  Ms. KLOBUCHAR. Madam President, we have now been joined by the 
Senator from Delaware, and we are pleased to have him here as well as 
we continue our discussion about the fine qualities of Solicitor 
General Kagan for the job of Justice of the Supreme Court.
  Senator Carper.
  Mr. CARPER. I thank the Senator, and I yield myself 10 minutes.
  The PRESIDING OFFICER. The Senator from Delaware is recognized.
  Mr. CARPER. Madam President, I rise today in support of Solicitor 
General Elena Kagan's confirmation to the U.S. Supreme Court. I am 
confident that in the years to come, she will make proud the President 
who has nominated her as well as those of us who vote to confirm her.
  I would like to begin today, if I may, first by explaining why I am 
supporting the nomination, and after I have done that I will outline 
why I believe a number of our Republican colleagues shouldn't just 
consider supporting that nomination but should support her nomination 
along with the rest of us.
  This is my fourth opportunity to vote on a nomination to the Supreme 
Court. As do each of my colleagues, I take seriously our constitutional 
obligation to provide advice and consent to determine whether a 
President's judicial nominees truly merit a lifetime appointment. I 
realize a number of considerations are weighed not just by me but by 
each of us who serve here when making a decision that is as important 
as this one is for our Nation.
  Before coming to the Senate, I was privileged to have served as 
Governor of Delaware, and in that role I nominated, over the course of 
8 years, dozens, maybe scores, of men and women to serve as judges in 
our State courts. The qualities I sought then in judicial nominees 
included unimpeachable integrity, a keen intellect, a thorough 
understanding of the law, sound judicial temperament, a willingness to 
listen and to consider both sides of an argument, and a strong work 
ethic. These qualities are also the ones that guide me today as I 
decide how to vote on the judicial nominees that come before us in the 
Senate, whether that President is Barack Obama or George W. Bush.
  In applying each of these standards to Elena Kagan, it has become 
clear to me while examining her record that she meets or exceeds all of 
them. First, if you will, just consider with me--I know others have 
touched on this, but I will do it again--her life and experience.
  As others have reminded us, she graduated summa cum laude from 
Princeton University. She received a scholarship to pursue her graduate 
studies at Oxford University, and after that she earned her law degree 
magna cum laude from Harvard Law School.
  Following law school, she clerked for DC Circuit Court and then for 
U.S. Supreme Court Justice Thurgood Marshall. Starting in 1989, Ms. 
Kagan spent 2 years in private practice before taking on a position as 
professor of law at the University of Chicago. Then in 1995, she went 
to work in the White House and she rose there to the position of Deputy 
Assistant to the President for Domestic Policy. In 2001, with the 
change in administrations, Ms. Kagan returned to the study of law as a 
professor first, and then as Dean of the Harvard Law School. I believe 
she is the first woman to achieve that.
  More recently, in 2009, Elena Kagan was confirmed by the Senate, with 
the support of seven or eight of our Republican colleagues, to serve as 
the first female Solicitor General of the United States.
  Ms. Kagan is widely recognized as one of our Nation's leading legal 
minds and has been hailed as a preeminent scholar of administrative 
law. The American Bar Association has bestowed upon her their highest 
rating of ``well qualified'' in assessing her record and in evaluating 
her judicial temperament.
  I realize some have criticized Elena Kagan for not having previously 
served on the bench. I take a different view. As a nominee from outside 
the judicial monastery, I believe Ms. Kagan's background and experience 
will actually bring a valuable perspective and a breath of fresh air to 
the Supreme Court. As my colleagues consider her nomination, I hope 
they take into account the fact that in our Nation's history--listen to 
this--more than one-third of our Supreme Court Justices have had no 
prior experience on the bench, either in Federal Government or outside 
of Federal Government.
  Others have objected to Ms. Kagan's nomination on the grounds that 
while serving as the dean of the Harvard Law School, she allegedly 
limited military recruiters access to students. This charge of my 
opponents on Ms. Kagan's nomination was one I took very seriously as I 
considered her nomination to serve on our highest Court.
  As some of my colleagues know, I attended Ohio State University as a 
Navy ROTC midshipman and went on to serve 5 years as a naval flight 
officer during a hot war in Southeast Asia and for another 18 years as 
a ready reservist until the end of the Cold War. I deeply appreciate 
all that the military has done for me, and I believe our military 
recruiters should be allowed to have access to college campuses and to 
the students there.

[[Page S6634]]

  Having examined this issue in some detail, I can say with confidence 
that I believe Elena Kagan honors and reveres the men and women who 
serve our country in its Armed Forces, as do I. The fact is, military 
recruiters did continue to have access to students throughout her 
tenure, and in some years recruitment actually rose rather than 
diminished.
  Last month, I had the privilege of meeting personally with Elena 
Kagan, as a lot of my colleagues have as well. We spoke about many 
matters. We spoke about her life, her work, her views of the law. It 
was a revealing conversation for me and actually quite an encouraging 
one in no small part because I walked away feeling that Elena Kagan is 
not just uncommonly bright and a scholar of the law. Perhaps just as 
important, she has the potential to become, over time, the kind of 
consensus-builder that the Supreme Court needs at this time in our 
Nation's history.
  Given the plethora of closely decided 5-to-4 decisions emanating from 
the Supreme Court in recent years, it is clear, at least to me, that 
they could use another Justice there who has the experience and the 
ability to help them find common ground and work toward sound, 
reasonable, commonsense solutions and opinions. Come to think of it, we 
could use a few more people like that here in the legislative branch of 
our government and on both sides of the aisle.
  Fortunately, among her colleagues and in the legal community, Elena 
Kagan is known as a consensus builder. Even those who may have a 
different judicial philosophy than Ms. Kagan nonetheless respect her 
judgment and her abilities.
  One of them is Michael McConnell. He is a constitutional law scholar 
who was nominated by President George W. Bush to serve as a U.S. 
circuit court judge on the Tenth Circuit. He had this to say about her:

       Publicly and privately, in her scholarly work and in her 
     arguments on behalf of the United States, Elena Kagan has 
     demonstrated a fidelity to legal principle even when it means 
     crossing her political and ideological allies. I urge you to 
     confirm Elena Kagan to be an Associate Justice of the Supreme 
     Court.

  We thank Mr. McConnell for that advice.
  It is clear to me, and I believe to many others on both sides of the 
aisle, that if confirmed, a ``Justice Kagan'' would base her approach 
to deciding cases solely on the law and our constitution, and not on 
any ideological agenda or on the politics of a case.
  Let me close, if I may, by expressing my appreciation to the handful 
of Republican Senators who have announced publicly in recent days that 
they intend to support Ms. Kagan's nomination. I am sure it was not an 
easy decision. I do believe, however, it is the right decision for our 
country, and I hope those men and women will be joined by a number of 
other Republican Senators when the final vote is taken later this week.
  Many of us remember when, in 1986, President Reagan nominated William 
Rehnquist to serve as Chief Justice of the United States, and his 
subsequent confirmation by the Senate with the support of 16 Democratic 
Senators. However, not many recall that in 1971, when William Rehnquist 
was nominated to serve as an Associate Justice on the Court, he had no 
prior experience on the bench. Even so, in 1971, some 29 Democratic 
Senators joined their Republican colleagues in supporting his 
confirmation. As you know, Justice Rehnquist went on to have a long and 
distinguished career on the Supreme Court.
  The fact that Chief Justice Rehnquist's nomination was supported by a 
large number of Democratic Senators not just once but twice is an 
important testament to the strength of our democratic process and our 
ability to work across party lines. I hope we can make a similar 
statement later this week with the confirmation of Ms. Kagan to the 
Supreme Court with the support of Senators from both sides of the 
aisle, including the Senator sitting across this Chamber today from the 
State of South Carolina who I think sets, in this instance, a 
particularly good example for us all.
  With that, Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Ms. KLOBUCHAR. Madam President, I think this concludes our very broad 
discussion about all of the fine qualifications of Elena Kagan for this 
job and, again, refuting the words of one of our colleagues--
unfortunate words--in which he said, I believe, that she doesn't have 
the gifts and the qualities of mind and the temperament one must have 
to be a Justice.
  Look at the words of so many people across this country, along so 
many different ideological lines--69 law school deans who wrote about 
her knowledge of the law and skills in legal analysis as being ``first-
rate.'' They say:

       Her writings in constitutional law and administrative law 
     are highly respected and widely cited. She is an incisive and 
     astute analyst of law, with a deep understanding of both 
     doctrine and policy.

  Listen at what the National Association of Women Judges has said:

       We recognize the essential qualifications that a justice of 
     our highest court must have: superior intellectual capacity 
     as well as an intimate knowledge and a deep understanding of 
     constitutional law. It cannot be seriously disputed that 
     General Kagan brings these qualifications with her in 
     abundance.

  From the Women's Bar Association:

       Solicitor General Kagan's intellect and legal acumen have 
     been recognized by those across the political spectrum.

  Of course, I already read into the Record the words of the National 
District Attorneys Association.
  So many people have written in support of Solicitor General Kagan. 
But I would say that no words meant more to me than the words of our 
colleague, Senator Graham, who is here across the aisle. He had the 
courage to stand up and explain why he made the decision to support her 
nomination.
  He made very clear that he didn't agree with every position she had 
ever taken or would agree with every decision that she would ever make. 
But he talked about our role as Members of the Senate to not be 
political arbiters in terms of who the judge should be but to have the 
role of oversight and to figure out what the qualifications are and 
does this person meet the qualifications and does the person have the 
judgment to make decisions in very difficult cases. And, as Senator 
Graham so eloquently stated that day during the hearing, Solicitor 
General Kagan--
  The PRESIDING OFFICER. The time controlled by the majority has 
expired.
  Ms. KLOBUCHAR. Makes the grade.
  With that, I yield to my colleague from South Carolina.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM. Madam President, I appreciate the kind comments of the 
Senator from Minnesota. I have enjoyed working with her on the 
committee and hope to be able to work with her on a lot of different 
topics, including confirming judges.
  My view of Elena Kagan is quite simple. I found her to be a good, 
decent person; well qualified in terms of her legal background to sit 
on the Court. The people who know her the best, who worked with her, 
have nothing but good things to say about her. She is not someone a 
Republican President would have picked--she is definitely in the 
liberal camp when it comes to judging--but I think within the 
mainstream of the left wing of the Court.
  The Court has two wings to it. A lot of decisions are--not a lot, 
some decisions are 5-4. But you know who the conservatives on the Court 
are and you know who the liberals are. The one thing they have in 
common is that they are highly qualified, great Americans who happen to 
view the law a bit differently in terms of philosophy. But they have 
brought honor to the Court.
  Justice Ginsburg is definitely in the left wing of the Court. Justice 
Scalia is definitely in the right wing of the Court. From what I have 
been told, they have a deep personal friendship; that Justices Scalia 
and Ginsburg have become fast friends and admire each other even though 
they often cancel out each other's vote and they have some real good 
give and take in their opinions. In that regard I think they represent 
the best in judging and the best in our democracy, and that is two 
different philosophies competing on the battlefield of ideas but 
understanding that neither one of them is the enemy. They have a lot of 
respect for each other.
  What brought me to the conclusion to vote for Solicitor General 
Kagan? I

[[Page S6635]]

believe the advise and consent clause of the Constitution had a very 
distinct purpose. Under our Constitution, article 2, it allows the 
President of the United States to appoint Supreme Court Justices and 
judges to the Federal bench in general. That is an authority and a 
privilege given to him by the Constitution. You have to earn that by 
getting elected President.
  After having watched Senator McCain literally about kill himself to 
try to be President, I have a lot of admiration for those who will seek 
that office. It is very difficult to go through the process of getting 
nominated and winning the office. I daresay that Senator McCain would 
indicate it is one of the highlights of his life to be nominated by his 
party and to go out and fight for the vote of the American people.
  Senator Obama was a Member of this body before being elected 
President. I can only imagine what he went through, going through the 
primary process, beating some very qualified, high-profile Democrats to 
get the nomination of his party. When it was all said and done, after 
about $1 billion and a lot of sweat and probably sleepless nights, he 
was elected by the people of the United States to be our President. I 
want to honor elections.
  My job, as I see it--and I am just speaking for me--each Senator has 
to determine what they believe the advise and consent clause requires. 
From my point of view I will tell you what I think my job is in this 
process. No. 1, it is not to be a rubberstamp. Why would you even have 
the Senate involved if the President could pick whomever he or she 
chose? So there is a collaboration that goes on here. There is a check 
and balance in the Constitution where we have to advise and consent. So 
I do not expect myself or any other Senator to feel once the election 
is over, you have to vote for whomever they pick. You do not. There may 
be a time when I vote ``no'' to a President Obama nominee.
  But my view of things is sort of defined by the Federalist Paper No. 
76, Alexander Hamilton, who was one of our great minds of this 
country's history. He said, ``The Senate should have special and strong 
reasons for denial of confirmation.''
  I think his comment to us is that, yes, you can say no, but you need 
to have a special and strong reason because the Constitution confers 
upon the President the right to pick. What would those strong and 
special reasons be? Whatever you want it to be. That is the fact of 
politics. Those strong and special reasons can literally be whatever 
you want it to be as a Senator. But here is what Alexander Hamilton had 
in mind as to strong and special reasons. He continued:

       To what purpose, then, require the cooperation of the 
     Senate? I answer, that the necessity of their concurrence 
     would have a powerful, though, in general, a silent 
     operation.

  I think that powerful and silent operation is meant to be a firm but 
not overly political check and balance; not a continuation of the 
campaign. Because the campaign is a loud experience. It is 50 plus 1, 
rah-rah-rah, build yourself up, tear your opponent down. So when 
Alexander Hamilton indicated to the Senate his view of the advise and 
consent clause, that it would be powerful, though in general a silent 
operation, I think he is telling us: The campaign is over. Now is the 
time to govern. So when this nominee comes your way from the person the 
Constitution confers the ability to pick and choose, you should have in 
mind a powerful but silent operation.
  ``It would be an excellent check upon a spirit of favoritism. . . .'' 
I think that is pretty self-evident, that one of the things we do not 
want to have with our judiciary is it becomes an award or prize for 
somebody who helped in the campaign, picking somebody who is close to 
you personally, related to you, so that the job of Federal judge 
becomes sort of political patronage. The Senate could be a good check 
and balance for that. I think that is one of the reasons we are 
involved in the process, to make sure that once the election is over, 
the President himself does not continue the campaign. The campaign is 
over and we have a silent operation in terms of how we deliver our 
advice and consent. So he is telling the President through the Senate 
that once the campaign is over, you should not pick someone who will 
help you politically or return a favor; you should pick someone who 
will be a good judge.
  It ``would tend greatly to prevent the appointment of unfit 
characters from State prejudice.'' That is another view that Alexander 
Hamilton had, as to how the Senate should use its advise and consent 
duties, to make sure that unfit characters do not go on the Court. I 
can imagine that has probably been used in the past.
  ``From family connection,'' that one is obviously self-evident. You 
don't want to pick someone from your family unless there is a good 
reason to do so. ``[F]rom personal attachment or from a view to 
popularity.''
  When I add up all these things, I am looking at the necessity of 
their concurrence with a: ``powerful, though, in general, silent 
operation. It would be an excellent check upon the spirit of favoritism 
. . . to prevent the appointment of unfit characters . . . from family 
connection, from personal attachment, or from a view to popularity.''
  In other words, we are trying to make sure the President, he or she, 
picks a good, qualified judge, not some unfit character, some person 
tied to him or her personally, not someone who would be a popular 
choice but would be a lousy judge.
  When I apply that standard to Elena Kagan, I cannot find anything 
about her that makes her an unfit character to me. Frankly, what I know 
about her from listening to her for a couple of days and having people 
tell me about her is I think she is a very fine person with stellar 
character.
  The letter that moved me the most about Elena Kagan the person, I 
wish to share with the Senate and read, if I may. This comes from 
Miguel Estrada. For those of you who may not remember, Miguel Estrada 
was chosen by President Bush to be on the court of appeals. For a 
variety of reasons--there is no use retrying the past--he never got a 
vote by the Senate. He never got out of committee. All I can say from 
my point of view is, it was one of the great mistakes. I am sure there 
have been times when Republicans have done the same thing or something 
like it to a well-qualified Democratic selection. But I happened to be 
here when Miguel Estrada was chosen by President Bush. So he had a very 
unpleasant experience when it came to getting confirmed as a judge. But 
here is what he wrote about Elena Kagan, a Republican conservative 
lawyer chosen by President Bush to be on the court of appeals, writing 
for Elena Kagan:

       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 level 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 range from the--

  Well, I am not going to read it all.

     . . . one could readily identify the members of the current 
     Senate majority, including several who serve on the Judiciary 
     Committee [and their partisan views].
       Lest my endorsement of Elena's nomination erode the support 
     she would see from her own party, I should make it clear that 
     I believe her views on the subjects that are relevant to her 
     pending nomination--including the scope of judicial role, 
     interpretive approaches to the procedure 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

[[Page S6636]]

     the side of what is popularly conceived 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.

  I think that says a lot of Elena Kagan. I think it says a lot about 
Miguel Estrada. She wrote a letter basically--I asked her to--to tell 
me what she thought about Miguel Estrada. I will read that in a minute. 
But at the end of the day, those of us in the Senate have to understand 
that every branch of government includes human beings and there is a 
rule that stood the test of time. I didn't make this one up. It was 
somebody far wiser than I am, somebody far more gifted than I ever hope 
to be, somebody I put a lot of trust in.
  It is called the Golden Rule. ``Do unto others as you would have them 
do unto you.'' That is probably one of the most powerful statements 
ever made. It is divine in its orientation, and it is probably 
something that would serve us all well if we thought about it at 
moments such as this.
  I am going to vote for Elena Kagan because I believe constitutionally 
she meets the test the Framers envisioned for someone to serve on the 
Court. I don't think the Framers ever envisioned Lindsey Graham from 
South Carolina voting no because President Obama picked someone who is 
clearly different than I would have chosen. Because if that were the 
case, the campaign never ended. It would undercut the President's 
ability to pick someone of like philosophy. My job is to make sure the 
person he chose is qualified, of fit character, not chosen for 
favoritism or close connection but chosen based on merit.
  I have no problem with Elena Kagan as a person. I have no problem 
with her academic background. I have no problem with her experience as 
a lawyer. Even though she has worked for Justices whom I would not have 
ruled like, even though she has taken up political causes I oppose, 
that is part of democracy.
  Her time as Solicitor General, where she represents the United States 
before the Supreme Court, was reassuring to me. She has had frontline 
experience in the war on terror. She has argued before the Supreme 
Court that terrorist suspects should be viewed under the law of war. 
She supports the idea that someone who joins al-Qaida has not committed 
a crime. They have taken up arms against the United States, and they 
can be held indefinitely without trial if, under proper procedures, 
they have been found to be part of the enemy force. She understands 
detainees held at Bagram Airfield in Afghanistan should not be subject 
to judicial review in the United States because they are prisoners of 
war in an active theater of combat. If she gets on the Court--and I am 
certain she will--she will be able to bring to the Court some 
frontline, real-world experience in the war on terror. She has had an 
opportunity to represent the United States before the Supreme Court, 
arguing that this Nation is at war, and the people who attacked us on 
9/11 and who continue to join al-Qaida are not some common criminals 
but people subject to the law of armed conflict. Her testimony when she 
was confirmed as Solicitor General was reassuring to me that she 
understood that very important concept.
  How she rules, I don't know. I expect she will be more similar to 
Justice Stevens in the way she decides cases. The person she is 
replacing is one of the giants of the Court from the progressive side. 
I expect she will follow his lead most of the time. I do believe she is 
an independent-minded person. When it comes to war on terror issues, 
she will be a valuable member of the Court and may provide a 
perspective other judges would not possess. That is my hope.
  I don't vote for her expecting her to do anything other than what she 
thinks is right, ruling with the Court most of the time in a way a 
Republican nominee would not have ruled. It gets back to my point of a 
minute ago. If I can't vote for her, then how can I ask someone on the 
other side to vote for that conservative lawyer, maybe judge, who has 
lived their life on the conservative side of the aisle, fighting for 
conservative causes, fighting for the pro-life movement, standing for 
the conservative causes I believe in, a strong advocate of a second 
amendment right for every American? That day will come. I hope sooner. 
But one day that day will come. What I hope we can do from this 
experience is remember that when that day does come, the Constitution 
has not changed at all. The only thing changed was the American people 
chose a conservative Republican President. I ask my colleagues to honor 
that choice, when that conservative President, whoever he or she may 
be, picks someone whom my colleagues on the other side would not have 
chosen. But that has been the way it has been for a couple hundred 
years now.
  Justice Ginsburg, the ACLU general counsel, got 96 votes. Justice 
Scalia got 96 or 97 votes. Senator Thurmond, my predecessor, voted for 
Justice Ginsburg. There is no way on God's green Earth Strom Thurmond 
would have voted for Justice Ginsburg if he believed his job was to 
pick the nominee. There is no way many of my colleagues on the other 
side would have ever voted for Justice Scalia if they thought it was 
their job or they had the ability to make a selection in line with 
their philosophy. No one could have been more polar opposite than 
Ginsburg and Scalia. But not that long ago, in the 1990s, this body, 
without a whole lot of fussing and fighting, was able to put on the 
Court two people who could not be more different but chose to be good 
friends.
  The history of confirming nominees to the Supreme Court is being 
lost. Madam President, 73 of the 123 Justices who served on the Supreme 
Court were confirmed without even having a rollcall vote. Something is 
going on. It is on the left, and it is on the right. I hope this body 
will understand one thing: The judiciary is the most fragile branch of 
government. They can't go on cable TV and argue with us as to why they 
are qualified. They cannot send out mailings advocating their 
positions. They have no army. All they have is the force of the 
Constitution, the respect of the other branches and, hopefully, the 
support of the American people.
  Having gone to Iraq and Afghanistan many times, the one thing I can 
tell my colleagues that is missing in most countries that are having 
difficult times is the rule of law. What is it? To me, the rule of law 
is a simple but powerful concept. If you ever find yourself in a 
courtroom or before a magistrate or a judge, you will be judged based 
not on what tribe you came from. You will be judged based on what you 
did, not who you are.
  The one thing we don't want to lose in this country is an independent 
judiciary. We are putting the men and women who are willing to serve in 
these jobs sometimes through hell. Judge Alito was poorly treated. I am 
very proud of what Senator Sessions was able to do as ranking member. 
We had a good, spirited contest with Sotomayor and Kagan. I thought the 
minority performed their role in an admirable fashion. I appreciate 
what Senator Leahy did working with Senator Sessions. I thought these 
two hearings were conducted in the best traditions of the Senate.
  The votes will be in soon. She is going to get a handful of votes on 
our side. I have chosen to be one of those handful. From a conservative 
point of view, there are 100 things one can find at fault in terms of 
philosophy and judicial viewpoint with Elena Kagan. I have chosen not 
to go down that road. I have chosen to go down a different path, a path 
that was cleared and marked for me long before I got here, a path that 
has a very strong lineage, a path that I believe leads back to the 
Constitution, where the advice and consent clause is used in a way not 
to extend the election that is now over but as a reasonable, powerful 
but silent check on a President who chose a judge for all the wrong 
reasons. Choosing a liberal lawyer from a President who campaigned and 
governs from the left is not a wrong reason. Choosing a conservative 
lawyer or judge once you campaign for the job running right of center, 
in my view, is not the wrong

[[Page S6637]]

reason. The wrong reason would be if the person you chose was not 
worthy of the job, did not have the background or the moral character 
to administer justice. I cannot find fault with Elena Kagan using that 
standard.
  I will vote for her. I will say to anybody in South Carolina and 
throughout the country who is listening: She is not someone I would 
have chosen, but it is not my job to choose. It is President's Obama's 
job. He earned that right. I have no problem with Elena Kagan as a 
person. I think she will do a good job, consistent with her judicial 
philosophy. I hope and pray that the body over time will get back to 
the way we used to do business. If we don't watch it, we are going to 
wake one day, and we will politicize the judiciary to the point that 
good men and women, such as Sam Alito, Justice Roberts, and Elena 
Kagan, will not want to come before this body and be a judge. If that 
ever happened, it would be a great loss to this country.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  Mr. SESSIONS. 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. SESSIONS. Madam President, there has been some suggestion in the 
course of the discussion of Elena Kagan's nomination that her decision 
to bar the military from access to Harvard's recruiting office was a 
principled one and had no impact on the lives of Harvard law students 
in the military. I think that is not a fair way to describe it. Her 
decision relegated the military to second-class status at Harvard Law 
School. Military recruiters were, as she indicated in one statement, 
``alienating'' to some students and were not welcome, and students who 
made public their interest in the military service otherwise might be 
ostracized in that climate. But she wanted the student veterans to 
quietly help the classmates who might be interested in military service 
to overcome the obstacles there.
  Well, let me just say it this way: Ms. Kagan protested against don't 
ask, don't tell in reality by obstructing the mission of the junior 
military officers who had at that point in their career been assigned 
the duty of recruitment at law schools around the country, recruiting 
JAG officers for the military. But these junior officers had no control 
whatsoever over this law. We often refer to it as a military policy, 
but it is not a policy, it is law passed by the Congress of the United 
States.
  So her effort to make a political point at the expense of the U.S. 
military and in defiance of clear Federal law passed by this Congress 
calls into question, really, her willingness to be governed by that law 
because she was punishing the military, really demeaning them, not 
allowing them equal access like any other law firm, presumably, in 
America and demeaning them in that fashion. So I really think this 
issue is not a little one. It is a very big one. It says something very 
significant about her ability and her objectivity. So for that reason, 
I think it calls into question her ability to serve on the bench as an 
objective person in justice.
  I see the majority leader. He just appears out of the blue. I know he 
is busy, so I will yield the floor.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Madam President, I want my friend from Alabama to know that 
when I see him on the floor, I do not run to the floor. It just happens 
to work out a lot of times. So I appreciate his yielding.
  I am going to send a cloture motion to the desk dealing with the 
Kagan nomination. I want the ranking member to understand that I have 
spoken to the Republican leader.
  Could I have the attention of the Senator from Alabama? I want the 
Senator from Alabama to hear this. I am filing a cloture motion on the 
Kagan nomination. I have spoken to the Republican leader. This is in no 
way to cut off debate. We have had 20 Senators who have spoken today. I 
want Senators to have the ability to speak in whatever means they feel 
appropriate, but I just do not want a renegade Senator to stop us from 
being able to complete this nomination.
  Mr. SESSIONS. If the Senator will yield?
  Mr. REID. I will just say this: If it comes time for the cloture vote 
and more time is needed, everyone over here will be happy to make sure 
people have ample time. We will postpone the cloture vote as long as 
necessary to make sure people will have the opportunity to speak.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Madam President, I will just say to the leader, I am a 
bit hurt. I do not think this is a necessary step, that the leader has 
indicated we will move forward in maybe 3 days and finish this debate. 
And to file a cloture motion--if it in any way suggests there is a 
deliberate attempt on this side to block an up-or-down vote, I will 
just say I have tried to make clear that I have a high standard before 
I would attempt to block an up-or-down vote, and I have not suggested 
and I think very few on this side have suggested--a vote at the time 
that is right should go forward. I would expect that it would.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Madam President, I stated on the floor earlier today that I 
think the conduct of the chairman and ranking member on this nomination 
has been exemplary. I said that already. But if my friend from Alabama 
would listen just for a minute, I have so many things I am trying to 
work through procedurally so we can leave here at a reasonable time 
this week. I just do not want someone who gets mad because I have done 
something they do not like saying: I am not going to let you have a 
vote on this judge until I get what I want.
  I want to make sure everyone who wants to has the opportunity to 
speak on Kagan. No one on the Republican side has even suggested a 
filibuster. OK. And I understand that. But this is to make sure one 
Senator in this body--not on the nomination of Kagan but on anything--
they get their dander up a little bit, and he or she can cause the 
whole Senate to come to a standstill.
  So I repeat, if there is more time needed, there will be ample time. 
When the time for voting comes up, I will give whatever time is 
necessary. What I have been trying to get--and I am sure it is too 
early to have done that--is a time certain to vote on Elena Kagan. But 
I think my friends on the other side of the aisle have told me it is 
too early to do that. But I say to my friend, there is no direction to 
prevent anyone from speaking on this nomination for however long they 
want.
  Mr. SESSIONS. Well, I just do not want somebody to come back and say 
in the future that we had to file cloture to get a vote on this 
nomination, and you filibustered this nomination. I feel pretty 
strongly about that and am a bit uneasy that the leader has felt he 
needed to do this.
  I thank the Chair.
  Mr. REID. I will just repeat what I said before. Any one Senator, as 
we have learned--those of us who have served in the Senate and those 
who have not been around here a long time--any one Senator can really 
throw things into a turmoil, on your side or on my side. And the 
purpose of this is to make sure we finish the Kagan nomination before 
we leave.
  Mr. McCONNELL. Will the majority leader yield for an observation?
  Mr. REID. I am happy to.
  The PRESIDING OFFICER. The Republican leader.
  Mr. McCONNELL. We had this conversation earlier today on the 
telephone. I think filing a cloture motion is completely unnecessary 
and--
  Mr. REID. Let me just interrupt my friend. If my two friends feel 
this way--my concern is that we get locked into the 30-hour time. But I 
guess I could still do it on Thursday. So I know everyone----
  Mr. McCONNELL. I cannot imagine what incentive anyone would have to 
create the scenario under which the majority leader is concerned with.
  Mr. REID. The Republican leader and I know the many things we are 
trying to complete in the next few days. And because I do not do 
something, as I have had happen before--that somebody on either side of 
the aisle gets disturbed because of something I did or did not do--they 
say: I am not going to let you have a vote on Kagan now. That could be 
on my side or on your side.

[[Page S6638]]

  So here is what I will do: I have not filed this motion yet. Based on 
the statement of my friend from Alabama and my friend the Republican 
leader, I will just hold this in abeyance. I just know what is coming 
tomorrow. If we get stuck in a 30-hour time period, realistically, it 
would take consent to even allow the debate to go forward on Kagan. I 
would certainly not stand in the way of that. And during the time of 
the 30 hours pending, as I understand the rules, I cannot file another 
cloture motion.
  But recognizing that everyone wants to operate in the best way, what 
I would do is ask my two friends here, the ranking member of the 
Judiciary Committee and my friend the Republican leader--would the 
Republican leader consider allowing, if we get stuck in some procedural 
thing tomorrow, which is Wednesday--we have to complete this by Friday, 
I would think--would my friend consider a unanimous consent request to 
allow me to file tomorrow? Because if we are postcloture with 30 hours, 
I cannot file cloture tomorrow.
  Mr. McCONNELL. Yes. I would say to my friend the majority leader, I 
would be willing to consider that. The point I am trying to make here 
and the Senator from Alabama has tried to make is we are unaware of 
anybody on our side who does not expect a vote on Kagan on Thursday. As 
you and I have discussed on and off the floor, the thought was that we 
would have the Kagan vote. That would be the last vote prior to the 
August recess. That is the scenario under which we have been operating, 
and I am perplexed as to why my friend the majority leader feels this 
is a step he needs to take.
  Mr. REID. The only thing I cannot do is guarantee that will be the 
last vote. There may be something else that comes up. But I will do my 
best to cooperate, as I know you will. So I will see if this is 
necessary some other time.
  The PRESIDING OFFICER. The Republican leader.
  Mr. McCONNELL. Madam President, I appreciate the majority leader 
withholding. We can continue to discuss this, even tonight if he would 
like, the two of us, privately.
  Mr. REID. We will wait until the vote takes place tomorrow and find 
out what, if anything, we need to do.
  Mr. McCONNELL. Fair enough.
  Mr. REID. I am not filing the motion at this time, and I appreciate 
very much the sincerity of my friend from Alabama, as usual, and, of 
course, my friend from Kentucky. He and I have worked together on a lot 
of things over the years, and I appreciate him being so candid today.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. BARRASSO. Madam President, this is the second time since I have 
become a U.S. Senator that I have been asked to provide the President 
advice and consent on a Supreme Court nominee. Last year, almost to the 
day, I spoke on the Senate floor on the nomination of Judge Sonia 
Sotomayor to be on the Supreme Court. So I come to the floor today to 
speak on the nomination of Solicitor General Elena Kagan.
  During the debate in the Senate on Judge Sotomayor's nomination, I 
laid out the three criteria I use in evaluating an individual to 
fulfill the responsibilities of filling a vacancy on the Supreme 
Court. First, of course, we want to select the best candidate. Second, 
the Justice must be impartial and allow the facts and the Constitution 
to speak. And, third, a Justice has a responsibility to apply the law, 
not to write the law. Those are the criteria I have used in evaluating 
Elena Kagan's nomination.

  I met with Solicitor General Kagan following her appearance before 
the Senate Judiciary Committee. She is personable and she is bright. 
Her career as an attorney has been exceptional. Although she has 
limited trial experience, she does understand the important role the 
judiciary plays in America. It is the second criteria that causes me 
concern: Solicitor General Kagan's ability to remain impartial. In 
particular, her actions and judgment as dean of the Harvard Law School 
as it related to military recruitment is, to me, a serious problem.
  Military recruitment on college campuses is protected by what is 
commonly referred to as the Solomon Amendment. The Solomon Amendment is 
legislation that Congress passed in the mid-1990s. The Solomon 
Amendment directs that institutions of higher learning shall not be 
eligible for Federal funding if they refuse to follow Federal law. 
Funding shall be denied--denied--if it is determined that the school, 
as a policy or a practice, either prohibits or, in effect, prevents 
ROTC access to campus or military recruiting on campus.
  In the late 1970s, Harvard Law School adopted a policy that barred 
organizations that discriminated against any group from recruiting on 
campuses. The ban applied to military recruiters. Other universities 
adopted similar policies. But following the passage of the Solomon 
Amendment, many institutions, including Harvard, adjusted their 
policies.
  Ms. Kagan became dean of Harvard Law School in the year 2003. In 
2003, America was fighting two wars. American men and women were 
voluntarily joining the military to serve and to defend our country. At 
a time when military recruiters were being allowed on campuses across 
the country, Dean Kagan was looking for ways to make it difficult for 
military recruiters to do their job at Harvard Law School. She wrote at 
the time:

       I abhor the military's discriminatory recruitment policy. . 
     . . This is a profound wrong--a moral injustice of the first 
     order.

  Well, eventually, a legal challenge to the Solomon Amendment was 
initiated. On two occasions, Dean Kagan signed court briefs opposing 
the Solomon Amendment. In 2004, when a lower court rejected the Solomon 
Amendment, Dean Kagan immediately denied military recruiters the same 
access afforded to other recruiters on campus. She took this action 
even though the court making the ruling did not have jurisdiction over 
Harvard Law School. Harvard Law School is located in the First Circuit. 
The court that made the ruling was the Third Circuit.
  The Pentagon notified Harvard that the restrictions on military 
recruiters violated the law. In 2006, the U.S. Supreme Court ruled on 
the challenge to the Solomon Amendment. The U.S. Supreme Court rejected 
the lawsuit as well as the arguments that were put forth in the brief 
signed by Dean Kagan, and it did so unanimously. All of the Justices on 
the Supreme Court, both conservative and liberal--all of them--agreed 
the Solomon Amendment did not violate the rights of law schools. The 
law was unanimously upheld, and that is an extremely rare occurrence 
from a Court usually divided.
  For America's judicial system to work, judges must always remain 
impartial. I do believe that as dean of one of America's most 
prestigious law schools, Solicitor General Kagan allowed her personal 
biases to interfere with her judgment. Solicitor General Kagan had very 
strong opinions about military policies, including President Clinton's 
don't ask, don't tell policy. Like every American, she is entitled to 
her personal beliefs and the right to express those views. As the dean 
of Harvard Law School, she is also responsible to know the law and to 
not disregard it.
  So, then, how can one explain the actions of Elena Kagan while dean 
of the Harvard Law School? No. 1, she didn't know the law; No. 2, she 
didn't understand the law; or No. 3, she simply chose to ignore the law 
because of her strongly held personal beliefs.
  Many Americans may be able to get away with these explanations. Such 
explanations don't work for an individual seeking to become a Justice 
on the U.S. Supreme Court.
  Elena Kagan has been nominated for a lifetime appointment to the 
Supreme Court. If confirmed, she will be entrusted to make decisions 
that will impact America for a long time. The decisions she will be 
asked to make on this Court must be based on the law not influenced by 
personal experiences or personal convictions.
  In the case involving the Solomon Amendment, Dean Kagan failed to 
meet that standard. I believe Dean Kagan knew the law. I have no doubt 
she understood the law and wanted to find ways to get around the law.
  I will not be supporting Solicitor General Kagan's nomination to the 
Supreme Court. I believe she allowed her personal beliefs to guide her. 
As a private citizen, that may be acceptable.

[[Page S6639]]

As a member of the U.S. Supreme Court, it is not.
  Thank you, Mr. President. I yield the floor and I suggest the absence 
of a quorum.
  The PRESIDING OFFICER (Mr. Udall of Colorado). The clerk will call 
the roll.
  The bill clerk proceeded to call the roll.
  Mr. LEVIN. 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. LEVIN. Mr. President, I wish to add my support to the many voices 
calling for the confirmation of Solicitor General Elena Kagan to the 
position of Associate Justice of the Supreme Court.
  At a time when the discussion of our legal system is so often 
dominated by ideological labels, Elena Kagan would bring years of 
practical, pragmatic experience to our highest Court. She is 
extraordinarily well qualified and will bring a valuable new 
perspective to the Court.
  The highlights of Solicitor General Kagan's career are well known. 
Most recently, in 2009, she was the first woman to be nominated by a 
President and confirmed by the Senate to serve as Solicitor General of 
the United States. In this position in which she represents the 
interests of the U.S. Government before the Supreme Court, she has 
received numerous accolades from a broad range of observers. For 
example, Professor Michael McConnell, director of the Constitutional 
Law Center at Stanford Law School and former circuit court judge 
nominated by George W. Bush, in urging her confirmation said the 
following:

       Publicly and privately, in her scholarly work and in her 
     arguments on behalf of the United States, Elena Kagan has 
     demonstrated a fidelity to legal principle even when it means 
     crossing her political and ideological allies.

  Miguel Estrada, Assistant Solicitor General in the George H.W. Bush 
administration, said Solicitor General Kagan:

     . . . 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 . . . If [she] is confirmed, 
     I would expect her rulings to fall well within the mainstream 
     of current legal thought. . . .

  Ten former Solicitors General, representing both parties, have 
praised her ``breadth of experience and a history of great 
accomplishment in the law'' and said further that her ``most recent 
experience as Solicitor General will serve her well as she wrestles 
with the difficult questions that come before the Court.''
  Among those former Solicitors General were Kenneth Starr and Drew S. 
Days.
  In 2003, Elena Kagan was named dean of the Harvard Law School, the 
first woman to hold that title. Throughout her distinguished career, 
she has shown a remarkable knack for reaching out to people across the 
ideological spectrum. As Harvard Law School's dean, she broadened the 
school's diversity of legal points of view, strengthened the academic 
program, and improved quality of life for students and faculty alike.
  Elena Kagan will bring a different perspective to the Court, and we 
should welcome that. Justice Antonin Scalia put it this way:

       Currently, there is nobody on the Court who has not served 
     as a judge--indeed, as a Federal judge--all nine of us. I am 
     happy to see that this latest nominee is not a Federal 
     judge--and not a judge at all.

  Elena Kagan's sense of fairness, problem-solving ability, and balance 
is illustrated by one of the episodes in her career that some have 
inaccurately criticized her for. During her time as dean of Harvard Law 
School, that school, similar to many around the country, had a policy 
to not use the campus to promote discriminatory activities, such as 
don't ask, don't tell.
  Some have sought to portray Elena Kagan's actions throughout this 
episode as antimilitary. I find nothing in her words or actions that 
constitutes hostility to the military. Quite the opposite. But don't 
take my word for it. Take the words of former students of hers--for 
instance, one who when he received his promotion to captain in the 
Massachusetts National Guard asked Elena Kagan to pin on his captain's 
bars at his promotion ceremony--hardly an honor for a soldier to bestow 
on someone who is antimilitary.
  CPT Robert Merrill, who wrote an op-ed in the Washington Post, put it 
this way:

       She treated the veterans at Harvard like VIPs, and she was 
     a fervent advocate of our veterans association. She was 
     decidedly against ``don't ask, don't tell,'' but that never 
     affected her treatment of those who had served.

  Listen to 1LT David Tressler, who wrote:

       During the brief period when recruiters were not given 
     access to students officially through the law school's Office 
     of Career Services, they still had access to students on 
     campus through other means . . . Kagan's positions on the 
     issue were not antimilitary and did not discriminate against 
     members or potential recruiters of the military. . . . She 
     always expressed her support for those who serve in the 
     military and encouraged students to consider military 
     service.

  Finally, you can take the word of veterans who attended Harvard Law 
School who said that ``Elena Kagan has created an environment that is 
highly supportive of students who have served in the military.''
  Elena Kagan is smart, she is experienced, she is learned, and she is 
fair. She has the support of a host of organizations, a broad cross-
section of organizations, including the National District Attorneys 
Association, as well as a broad range of prominent scholars. She will 
make an excellent Justice of the Supreme Court. I hope she is 
overwhelmingly confirmed.
  Mrs. MURRAY. Mr. President, I am proud to support the nomination of 
Solicitor General Elena Kagan as the next Associate Justice of the U.S. 
Supreme Court. The Senate has few responsibilities more important than 
our constitutional obligation to advise and consent on the President's 
Supreme Court nominees. Supreme Court Justices are appointed for life, 
and the decisions they make affect the lives and livelihoods of every 
single family across the country. From the laws governing the role of 
corporations and special interests in our electoral process, to the 
rights of women over their own reproductive health--we have seen 
clearly over the years the impact of this Nation's highest court.
  So I am very glad that President Obama nominated Elena Kagan to fill 
this critical position. I met with Solicitor General Kagan and talked 
to her about how she envisioned her role on the Court. I asked her 
about her judicial philosophy, and what she felt the Court's role was 
in protecting ordinary Americans. I followed her testimony before the 
Senate Judiciary Committee. I was extremely impressed with what she had 
to say. Elena Kagan has proven herself to be someone who understands 
the importance of a fair and independent approach to rendering justice. 
She is committed to making sure the voices of families across the 
country are represented in the chambers of the Supreme Court. And she 
possesses an evenhanded view of our justice system that gives me every 
assurance that any individual or group from Washington State could 
stand before her and receive fair treatment.
  Solicitor General Kagan also has a strong legal background and is 
without a doubt a highly qualified choice for the Supreme Court. 
Following her graduation from Harvard Law School she served as a law 
clerk for Judge Abner Mikva on the U.S Court of Appeals, before moving 
on to clerk for Supreme Court Justice Thurgood Marshall. After spending 
some time in private practice, Elena Kagan went back into public 
service to work for President Clinton on the Domestic Policy Council. 
She then went back to Harvard Law School to teach and ultimately became 
the first woman to serve as dean of the school, where she cemented her 
reputation as a fairminded leader who reaches out to all sides and 
builds consensus. When President Obama was elected he called Elena 
Kagan back into public service to serve as Solicitor General. In this 
new role as the so-called 10th Justice, she argued before the Court on 
a broad range of issues, including a vigorous defense of the 
government's right to limit the influence of corporations and special 
interests in the electoral process.
  When I hear some of my colleagues on the other side of the aisle say 
that Elena Kagan lacks the experience to sit on the Supreme Court 
because she has never been a judge, I find that a little

[[Page S6640]]

hard to believe. Forty-one Justices have served on the Nation's highest 
court without having any prior judicial experience. Democrats and 
Republicans alike have expressed the notion that prior judicial 
experience is not a prerequisite for serving on the Supreme Court. In 
fact, for most of the Court's history there was a diversity of career 
experiences represented on the bench. Most recently, Chief Justice 
Rehnquist, who never served as a judge before he was nominated to the 
highest court. Neither did Justice Powell or Justice White. Nor did 
Justices Black, Warren, Jackson, or Marshall. So I find it interesting 
that the standard was changed with this nomination.
  Elena Kagan is clearly qualified, and she is going to make an 
outstanding Supreme Court Justice. Her nomination is also another step 
forward toward making sure that we have a Supreme Court that is 
reflective of the country whose laws it safeguards. We are now on the 
verge of having the most women to serve together on the court at any 
one time. While we still have work to do to achieve a court that is 
truly representative of the full diversity of American experiences, I 
am proud that we are taking this strong step forward toward that goal.
  After meeting with Solicitor General Kagan, hearing her testimony, 
and examining her record, I am confident that she has the judgment and 
impartiality to serve our Nation honorably on the Supreme Court. She is 
thoughtful and fairminded in her approach to some of the most pressing 
legal issues we face as a nation. She understands the struggles working 
families face and the role of the Supreme Court in protecting them. And 
she is committed to protecting the rights and liberties of all 
Americans.
  I am proud to represent families from my home State of Washington and 
I am proud to join with my Democratic and Republican colleagues to cast 
my vote to confirm Elena Kagan as the next Associate Justice of the 
U.S. Supreme Court.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant editor of the Daily Digest proceeded to call the roll.
  Mr. WHITEHOUSE. 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. WHITEHOUSE. Mr. President, I have come to the floor to speak for 
a few moments about the Kagan nomination, and I believe we have about 
20 minutes of time on our side. If somebody wishes to come and speak, I 
would gladly yield the floor, since I have had the chance to speak on 
her nomination as a member of the Judiciary Committee. But in the 
absence of somebody who has not had that chance, I wanted to go ahead 
and say a few words because I have been listening off and on throughout 
the day to the debate that has taken place on the Senate floor 
regarding her nomination and I have heard over and over concerns 
expressed--particularly from the other side of the aisle--about this 
terrible spectre of judicial activism, the judicial activism that looms 
over the Court and looms over the Kagan nomination.
  I know it is a familiar tune from the other side. I think most of 
them could sing it in their sleep, frankly. But if you actually look at 
where the activism is coming from, the surprising conclusion that I 
think objective people would have no choice but to reach is that it is 
the rightwing of the Supreme Court--the rightwing; the Roberts wing of 
the Court--that is in fact engaged in all of the activism.
  I think to a certain extent activism is a term of general criticism 
and that it applies to decisions you don't like. So if it is a decision 
that goes a way you don't like, it is an activist decision. If it is a 
decision that goes your way, no matter how much it changes the law, 
then that is not activism because I agree with it. So I think the 
discussion about activism is a little bit flavored by the question of 
point of view.
  Trying to set that point of view question aside, I thought a bit 
about what might the objective indicators of an activist Court--or in 
our case an activist bare majority on the Court--look like. What would 
the telltales be that you had an activist Court doing its thing? Well, 
I think there are a few, and they seem to be ones that are actually 
pretty germane to this activist bloc on the Supreme Court.
  For instance, if you were an activist Court, or an activist bloc on 
the Court, you would issue a lot of 5-to-4 decisions, and you would 
issue 5-to-4 decisions in major cases. The reason you would do that is 
because the Court is constantly presented with the choice to reach far 
with a bare majority or dial its aspirations back and achieve a broader 
consensus on the Court. So every decision presents, to one degree or 
another, this choice. When you see recurring 5-to-4 decisions, you see 
a majority of five that would appear to want to go to a particular 
place, even if they can't bring the other four judges with them, and 
who have deliberately chosen not to write a narrower decision, a more 
modest decision, a more conservative--small ``c''--decision that could 
have attracted six or seven or eight, or even perhaps all nine members 
of the Court.
  That is a flag that would fly over an activist Court--a penchant for 
5-to-4 decisions. Sure enough, the Roberts Court is notorious for 5-to-
4 decisions, particularly in major cases, and particularly in cases 
that change the law--that change the interpretation of the 
Constitution. So there is one flag, and they seem to be flying that 
warning flag right now.
  If you were an activist Court, you would probably tend to break the 
informal rules of appellate decisionmaking. Because the rules might 
constrain you from getting where you want to go, and they would be a 
nuisance because you had a purpose--you had a place you wanted to get 
with your decision, and so that the rules would be less of a hindrance 
for you, because you would want to get beyond them, you would set them 
aside.
  One of the dangers of the Supreme Court is that it is the court of 
final appeal. They have only their own self-restraint that prevents 
them from going anywhere. They stand above the checks and balances of 
our government in that respect. So these rules the Court tends to 
impose on itself to keep itself within proper bounds are important 
rules.
  One of them is that appellate courts do not engage in factfinding. It 
is not their province. Factfinding is done by juries and it is done by 
trial judges. Those facts are established at the trial court level. 
Once you get up above that and into the appellate courts you should be 
looking just at questions of law. The courts should not be engaging in 
factfinding at those upper levels, certainly not at the Supreme Court 
level. The exception to that principle is where the fact is so obvious 
that the Court can take what they call judicial notice of it. The Court 
can take judicial notice that San Francisco is west of Denver. It is an 
indisputable fact. It is no big deal. But other than that, factfinding 
is discouraged. So another little telltale would be is where the Court 
is running over those principles that are principles of self-restraint.
  Sure enough, you see the Roberts Court doing just that. Indeed, in 
one of its biggest leaps in which it knocked out enormous amounts of 
precedent, in which it knocked out enormous amounts of legislative 
practice and made a huge doctrinal shift, was the case of Citizens 
United. In that case, the Court made a finding of fact. It made a 
finding of fact that was critical to getting where it wanted to go in 
that decision. The finding of fact was the following--the finding of 
fact was that corporate money, the independent expenditure of corporate 
money in elections, cannot contribute to the corruption of those 
elections. Corporate money, independently spent in an American 
election, cannot possibly tend to corrupt that election.
  It is an interesting finding of fact because I think, as anybody who 
has been through a contested election would understand, it is a finding 
of fact that is in fact wrong. It is untrue. Yet they made it as a 
finding of fact. It is also a finding of fact that ran contrary to the 
vast legislative record that had been built up in Congress on this 
question when it had come up in previous matters before the Court. But 
because of the peculiar manner in which they got to this question in 
Citizens United--it was not a question presented by the parties; they 
added the question themselves, the Court did, and asked the parties to 
brief it in, so there had not been a record on this.

[[Page S6641]]

  They put themselves in a position where they could ignore the 
previous record of fact and then they created their own finding of fact 
notwithstanding that findings of fact are not something an appellate 
court is supposed to do, and in doing so they found a fact that was in 
fact not true. It is a false claim to assert that. It is not a fact.
  When you look at that, another flag goes up. That is the kind of 
thing an activist Court would be doing. They would be trespassing over 
the self-imposed rules of judicial restraint when necessary to get to 
the point they wish to achieve. Again, it was 5-4, so you have a ``two-
fer'' on that decision.
  If you are an activist Court, you would probably want to keep doing 
what you are doing so you would start advancing theories that allowed 
you to look at the precedents of the Court, the history of its 
decisions, and selectively knock down precedent you did not like. 
Nothing could give a Court more power and more room for activism than 
to be free of the constraint of precedent, of the previous decisions of 
the Court.
  The only way you can get yourself free of precedent--because it is 
there. The previous courts made those decisions. It is in the records. 
You go to the United States Supreme Court Reporter and you can look 
them up. So what you have to do is you have to knock it down if you do 
not like it. In order to do that, if that was your intention, you would 
want to come up with a theory that allowed you to do that. Sure enough, 
in Citizens United, in his concurring opinion, the Chief Justice of the 
United States did that. He came up with a theory that says if a 
precedent is hotly contested, then over time it clearly will be deemed 
not as valid as other precedent and ultimately it can be replaced with 
precedent that is not hotly contested.
  Who gets to decide on the Supreme Court whether a precedent is hotly 
contested? Obviously, the Justices themselves. So you can create a 
self-fulfilling prophecy in which Chief Justice Roberts and his bloc of 
four other conservative voters who make up the group of five that is 
always steering the Court to the right, can hotly contest any precedent 
they please. They can hotly contest it, and hotly contest it, until 
they undermine it more and more and finally they knock it down. Despite 
all the things they said about respect for precedent and judicial 
modesty when they went through their hearings before the Senate, what 
they have actually done is create an analytical tool, a device for 
selectively undermining precedent they do not like, hotly contesting 
it, disabling it, and taking it out. They can reshape the precedent of 
the Court to their liking using this doctrine.
  There is another flag that goes up. Why would you create a doctrine 
such as that, that allows you to selectively disrespect, hotly contest, 
and knock out the precedent of the Courts past if you did not have an 
intention to try to shift the precedent to support a particular 
direction? If you are an activist Court, you would give Congress very 
little deference. And this is a Court that gives Congress very little 
deference. Jeffrey Toobin, who writes on the Supreme Court frequently, 
in an article entitled ``No More Mr. Nice Guy, The Supreme Court's 
Stealth Hard-Liner,'' an article about Chief Justice Roberts, back in 
May of a year ago--so this is a little bit dated, May 25, 2009--said 
that:

       In every major case since he became the Nation's 
     seventeenth Chief Justice, Roberts has sided with the 
     prosecution over the defendant, the State over the condemned, 
     the executive branch over legislative, and the corporate 
     defendant over the individual plaintiff. Even more than 
     Justice Scalia has embodied judicial conservatism during a 
     generation of service on the Supreme Court, Roberts has 
     served the interests, and reflected the values, of the 
     contemporary Republican Party.

  ``Served the interests and reflected the values of the contemporary 
Republican Party''--by, in every major case, siding with the executive 
branch over the legislative.
  That is just one piece of it. The other is the disrespect for laws 
that have been passed by Congress and their intent. Lilly Ledbetter is 
the perfect case. Congress wanted to protect women from discrimination 
in the workplace, on what they are paid. Rather than read the statute 
to protect Lilly Ledbetter's right to a judgment, they came down with a 
finding that for so long as the company was successfully able to 
prevent her from finding out that she had been discriminated against, 
they were able to get away with it. That is not a finding this body 
ever would have accepted. But it was what the Court came down with. And 
it gave Congress no deference--again, a tradition in these Roberts 
Court decisions. Why would you want to defer to Congress if you have a 
point of view that you want to bring to the Court? You wouldn't want 
Congress's point of view involved, you would want your point of view, 
and therefore deferring to Congress would not be part of your goal.
  So the lack of deference, a striking pattern in the Roberts Court, is 
again consistent with what you would expect from an activist Court. 
Most of all, if you were an activist Court, a pattern would begin to 
emerge to those decisions as the Court issued them, particularly those 
5-4 decisions. On the Roberts Court, one pattern is striking, the clear 
pattern of corporate victories at the Roberts Court. It reaches across 
many fields--across arbitration, antitrust, employment discrimination, 
campaign finance, legal pleading standards, and many others. Over and 
over on this current Supreme Court, the Roberts bloc guiding it has 
consistently, repeatedly rewritten our law in the favor of corporations 
versus ordinary Americans. That is one of the reasons why Jeffrey 
Toobin, in his article, was able to say:

       In every major case since he became the nation's 
     seventeenth Chief Justice, Roberts has sided with 
     the corporate defendant over the individual plaintiff.

  Again, that was only effective May 25 of 2009, so it is a dated 
statistic. But certainly as of May 25 that was the record when 
corporations came before this Court.
  A recent article--not May 25 of 2009; this one is July 24, 2010--was 
written by Adam Liptak. The headline was ``Court Under Roberts Has 
Become Most Conservative in Decades.'' It was published in the New York 
Times. Here are some of the findings:

       In the 5 years [of the Roberts Court], the court not only 
     moved to the right but also became the most conservative one 
     in living memory, based on analysis of four sets of political 
     science data.
       The ideological direction of the court's activism has 
     undergone a marked change toward conservative results.

  Another quote from the article.

       The first term of the Roberts court was a sharp jolt to the 
     right.

  Another quote from the article.

       [F]ive years of data are now available, and they point 
     almost uniformly in one direction: to the right.

  That was another quote from the article.
  A more human reaction was of Justice Sandra Day O'Connor:

       ``Gosh,'' Justice Sandra Day O'Connor said in the law 
     school forum in January a few days after the Supreme Court 
     undid one of her major achievements by reversing a decision 
     on campaign spending limits. ``I step away for a couple of 
     years and there's no telling what's going to happen.''

  That was the reaction of Sandra Day O'Connor, a Republican appointee.
  They turn things very quickly when they have the chance.

       In 2000, the Court struck down a Nebraska law banning an 
     abortion procedure by vote of 5 to 4, with Justice O'Connor 
     in the majority--

making it a 5-to-4 striking down of that statute.

       Seven years later, the court upheld a similar federal law, 
     the Partial-Birth Abortion Act, by the same vote. ``The key 
     to the case was not in the difference in wording between the 
     Federal law and the Nebraska act,'' Erwin Chemerinsky wrote 
     in 2007 in The Green Bag, a law journal.'' It was Justice 
     Alito having replaced Justice O'Connor.

  A new person on the Court, almost identical set of facts, complete 
reversion of decision, 5-4 to 5-4.
  Similarly, in 2003, Justice O'Connor wrote the majority opinion in a 
5-4 opinion to allow public universities to take account of race in 
university admissions decisions. A month before her retirement in 2006, 
a similar decision came up, and because that decision was there on the 
books, that opinion, the Court refused to hear a case challenging the 
use of race to achieve integration in public schools.
  Almost as soon as she left, the article says, the Court reversed 
course. A 2007 decision limited the use of race for such a purpose, 
also on a 5-4 vote. So I suppose you could add another flag to

[[Page S6642]]

the list of signs of an activist Court and that would be that they 
change very recent decisions as soon as the majority changes so they 
control the votes, the way we might here in the legislature. It is very 
appropriate in the Senate when the majority shifts.
  I see the distinguished ranking member of the Finance Committee. If 
he were to be the chairman of the Finance Committee, I am sure the 
focus of the Finance Committee would change from that under Democratic 
leadership, and that is part of majority control, but it is not 
supposed to be that way on the Supreme Court. The Supreme Court is 
supposed to be not dealing with partisan questions, not going for a 
simple majority, but answering to the Constitution.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the 
Senate resume legislation session and proceed to a period of morning 
business with Senators permitted to speak therein for up to 10 minutes 
each; that upon the conclusion of the so-called wrap-up period, the 
Senate then resume executive session and continue the debate on the 
Kagan nomination as provided for under a previous order and in the 
specified hour blocks; that upon the conclusion of the debate 
previously specified in the hour blocks, the Senate then resume 
legislative session.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________