Congressional Record, Volume 156 Issue 116 (Tuesday, August 3, 2010)

[Congressional Record Volume 156, Number 116 (Tuesday, August 3, 2010)]
[Senate]
[Pages S6669-S6676]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

EXECUTIVE SESSION

______

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

The PRESIDING OFFICER. Under the previous order, the Senate will
resume executive session to hear the Kagan nomination.
The Senator from Iowa.
Mr. GRASSLEY. I thank the Senator from Rhode Island. He is always
very courteous to me.
Mr. President, I rise to take a few minutes to discuss the reasons
why I am voting against Elena Kagan to be Associate Justice. An
appointment to the Supreme Court is one of the most important positions
an individual can hold under our Constitution. It is a lifetime
position on the highest Court of the land. I take very seriously my
constitutional role of advice and consent. The Senate's job is not only
to provide advice and consent by confirming nominees who are
intelligent and accomplished. Our job is to confirm nominees who will
be fair and impartial judges, individuals who truly understand the
proper role of a Justice in our system of government. Our job, then, is
to confirm nominees who will faithfully interpret the law and the
Constitution without personal bias or prejudice.
When the Senate makes its determination, we must carefully assess the
nominee's legal experiences, record of impartiality, and commitment to
the Constitution and rule of law. We need to assess whether the nominee
will be able to exercise what we call judicial restraint. We have to
determine if the nominee can resist the siren call to overstep his or
her bounds and encroach upon the duties of the legislative and
executive branches. Fundamental to the U.S. Constitution are the
concepts of these checks and balances and the principle of separation
of powers. The preservation of our individual freedoms actually depends
on restricting the role of policymaking to legislatures rather than
allowing unelected judges with lifetime appointments to craft law and
social policy from the judicial bench. The Constitution constrains the
judiciary as much as it constrains the legislative branch and the
executive branch under the President.
When President Obama spoke about the criteria by which he would
select his judicial nominees, he placed a very high premium on a
judge's ability to have, in his words, ``empathy when deciding the hard
cases.'' This empathy standard glorifies the use of a judge's heart and
broader vision of what America should be in the judicial process. He
said that individuals he would nominate to the Federal judiciary would
have ``a keen understanding of how the law affects the daily lives of
American people.'' So when President Obama nominated Elena Kagan to the
Supreme Court, we have to assume he believed she met his ``empathy''
standard.

This empathy standard is a radical departure from our American
tradition of blind, impartial justice. That is because empathy
necessarily connotes a standard of partiality. A judge's impartiality
is absolutely critical to his or her duty as an officer of an
independent judiciary, so much so that it is actually mentioned three
times in the oath of office that judges take.
Empathetic judges who choose to embrace their personal biases cannot
uphold their sworn oath under our Constitution. Rather, judges must
reject that standard and decide cases before them as the Constitution
and the law requires, even if it compels a result that is at odds with
their own political or ideological beliefs.
Justice is not an automatic or a mechanical process. Yet it should
not be a process that permits inconsistent outcomes determined by a
judge's personal predilections rather than from the Constitution and
the law. An empathy standard set by the President that encourages a
judge to pick winners and losers based on that judge's personal or
political beliefs is contrary to the American tradition of justice.
That is why we should be very cautious in deferring to President
Obama's choices for the judicial branch. He set that standard; we did
not. We should carefully evaluate these nominees' ability to be
faithful to the Constitution. Nominees should not pledge allegiance to
the goals of a particular political party or outside interest groups
that hope to implement their political and social agendas from the
bench rather than getting it done through the legislative branch.
When she was nominated to the Supreme Court, meaning Ms. Elena Kagan,
Vice President Biden's Chief of Staff, Ron Klain, assured the leftwing
groups that they had nothing to worry about in Elena Kagan because she
is, in his words, ``clearly a legal progressive.'' So it is pretty safe
to say that President Obama was true to his promise to pick an
individual who likely would rule in accordance with these groups'
wishes. A Justice should not be a member of someone's team working to
achieve a preferred policy result on the Supreme Court. The only team a
Justice of the Supreme Court should be on is the team of the
Constitution and the law.
I have said on prior occasions that I do not believe judicial
experience is an absolute prerequisite for serving as a judge. There
have been dozens of people, maybe close to 40, who have been appointed
to the Supreme Court who have not had that experience. Solicitor
General Kagan, however, has no judicial experience and has very limited
experience as a practicing attorney.
Unlike with a judge or even a practicing lawyer, we do not have any
concrete examples of her judicial method in action. Thus, the Senate's
job of advice and consent is much more difficult. We do not have any
clear substantive evidence to demonstrate Solicitor General Kagan's
ability to transition from a legal academic and political operative to
a fair and impartial jurist.
Solicitor General Kagan's record and her Judiciary Committee
testimony failed to persuade me that she would be capable of making
this crucial transformation. Her experience has primarily been in
politics and academia. As has been pointed out, working in politics
does not disqualify an individual from being a Justice. However, what
does disqualify an individual is an inability to put politics aside in
order to rule based upon the Constitution and the law. In my opinion,
General Kagan did not demonstrate that she could do that during her
committee testimony. Moreover, throughout her hearings, she refused to
provide us with details on her views on constitutional issues.
It was very unfortunate we were unable to elicit forthcoming answers
to many of our questions in an attempt to assess her ability to wear
the judicial robe. She was not forthright in discussing her views on
basic principles of constitutional law, her opinions of important
Supreme Court cases or personal beliefs on a number of legal issues.
This was extremely disappointing.
Candid answers to our questions were essential for us as Senators to
be able to ascertain whether she possesses the proper judicial
philosophy for the Supreme Court. In fact, her unwillingness to
directly answer questions about her judicial philosophy indicated a
political approach throughout the hearing. I was left with no evidence
that General Kagan would not advance her own political ideas if she is
confirmed to the Federal bench.
General Kagan's refusal to engage in meaningful discussion with us
was particularly disappointing because of her position in a 1995 Law
Review Article entitled ``Confirmation Messes, Old and New.'' In that
article she wrote--and she was then Chicago Law Professor Kagan--that
it was imperative that the Senate ask about, and the Supreme Court
nominees discuss, their judicial philosophy and substantive views on
issues of constitutional law. Specifically, then-Professor Kagan wrote:

When the Senate ceases to engage nominees in meaningful
discussion of legal issues, the confirmation process takes on
an air of vacuity and farce, and the Senate becomes incapable
of either properly evaluating nominees or appropriately
educating the public.

That is in Professor Kagan's own words.
Bottom line, General Kagan did not live up to her own standard. She
was nonresponsive to many of our questions. She backed away from prior
positions and statements. She refused to discuss the judicial
philosophy of sitting judges.
When asked about her opinions on constitutional issues or Supreme
Court

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decisions, she either declined to answer or engaged in an overview of
the status of the law rather than a discussion of her own personal
views. Because of her shallow record on the issues, this approach to
the hearing was extremely troubling.
At her confirmation hearing, General Kagan told us to ``look to [her]
whole life for indications of what kind of judge or Justice [she] would
be.'' Well, General Kagan's record has not been a model of
impartiality, as we looked at her record and her life just as she asked
us to. There is no question that throughout her career she has shown a
strong commitment to far-left ideological beliefs. Solicitor General
Kagan's upbringing steeped her in deeply held liberal principles that
at one point she stated she had ``retained . . . fairly intact to this
date.'' Her jobs have generally never required her to put aside her
political beliefs, and she has never seen fit to do so. Her first
instinct and the instincts she has relied upon throughout her career
are her liberal, progressive political instincts put to work for
liberal, progressive political goals. I have no evidence that if
Solicitor General Kagan were confirmed to the Supreme Court she would
change her political ways or check her political instincts or goals at
the courthouse door.
In fact, General Kagan gained her legal expertise by working in
politics. She started out by working on Congresswoman Liz Holtzman's
Senate campaign, hoping for, in her words, a ``more leftist left.'' She
also worked as a volunteer in Michael Dukakis's Presidential run. The
Dukakis campaign wisely put her to work at a task that is political to
the core--opposition research. There she found a place where she was
encouraged to use her political savvy and make decisions based upon her
liberal, progressive ideology.
Moreover, while clerking for Justice Marshall, General Kagan's
liberal personal convictions--rather than the Constitution and the
law--seemed to be her ultimate guide when analyzing cases. General
Kagan consistently relied on her political instincts when advising
Justice Marshall, channeling and ultimately completely embracing his
philosophy of ``do[ing] what you think is right and let[ting] the law
catch up.'' Her Marshall memos clearly indicate a liberal and outcome-
based approach to her legal analysis.
In several of her memos, it is apparent she had a difficult time
separating her deeply held liberal views and political beliefs from the
law. For example, in one case she advised Justice Marshall to deny
certiorari because the Court might make ``some very bad law on
abortion.'' In another case, she was ``not sympathetic'' that an
individual's constitutional right to keep and bear arms had been
violated. In essence, her judicial philosophy was a very political one.
During her tenure at the White House, Solicitor General Kagan worked
on a number of highly controversial issues, such as abortion, gun
rights, campaign finance reform, and the Whitewater and Paula Jones
scandals. She herself described her work for President Clinton as being
primarily political in nature.
In a 2007 speech, she said:

During most of the time I spent at the White House, I did
not serve as an attorney, I was instead a policy adviser. . .
. It was part of my job not to give legal advice, but to
choose when and how to ask for it.

Her documents from the Clinton Library prove just that. She
forcefully promoted far-left positions and offered analyses and
recommendations that were far more political than legal in nature. For
example, during the Clinton administration, General Kagan was
instrumental in leading the fight to keep partial-birth abortion on the
books. Documents show that she boldly inserted her own political
beliefs in the place of science. Specifically, she redrafted language
for a nonpartisan medical group to override scientific findings against
partial-birth abortion in favor of her own extreme views. Despite the
lack of scientific studies showing that partial-birth abortion was
never necessary and her own knowledge that ``there aren't many [cases]
where use of the partial-birth abortion is the least risky, let alone
the `necessary,' approach,'' Solicitor General Kagan had no problem
intervening with the American College of Obstetricians and
Gynecologists to change their own policy statement.
After her intervention, this doctor group's statement no longer
accurately reflected the medically supported position of the
obstetricians and gynecologists. Rather, the group's statement now said
that partial-birth abortions should be available if the procedure might
affect the mother's physical, emotional or psychological well-being.
The reality is that General Kagan's change was not a mere
clarification. It was, in fact, a complete reversal of the medical
community's original statement.
Other documents show that Solicitor General Kagan also lobbied the
American Medical Association to change a statement it had issued on
partial-birth abortion. These documents demonstrated her ``willingness
to manipulate medical science to fit the Democratic Party's political
agenda on a hot button issue of abortion.''
During her hearing, General Kagan refused to admit she participated
in the decisionmaking process of what language the gynecologists would
use in their statement on partial-birth abortion. The documents present
a very different picture. Although she stated that there was ``no way
she could have intervened with the ACOG,'' she did exactly that.
Instead of responding to a legitimate inquiry in an open and honest
manner, she deflected the question and gave, at best, nonresponsive
answers.
In addition, Solicitor General Kagan worked on a number of
initiatives to undermine second amendment rights. She was front and
center of the Clinton administration's anti-second amendment agenda.
She collaborated closely with Jose Cerda on the administration's plan
to ban guns by ``taking the law and bending it as far as we can to
capture a whole new class of guns.'' After the Supreme Court in Printz
v. U.S. found parts of the Brady antigun law to be unconstitutional,
she endeavored to find legislative and executive branch responses to
deny citizens' second amendment rights.
Even in academia, Solicitor General Kagan took steps and positions
that were based on her strongly held personal beliefs rather than an
evenhanded reading of the law. As dean of Harvard Law School, she
actively defied Federal law by banning military recruiters from campus
while the Nation was at war. Prior to her appointment as dean, the
Department of Defense had made clear to Harvard that the school's
previous recruitment policy was not in compliance with the Solomon
Amendment, so Harvard did what Harvard should have done: changed its
policy to abide by the Federal law. But when the Third Circuit, which
does not include Massachusetts, ruled on the issue, then-Dean Kagan
immediately reinstituted the policy barring the military from the
Harvard campus. She took this position because she personally believed
the military's longstanding policy of don't ask, don't tell, in her
words, was ``a profound wrong--a moral injustice of the first order.''
She claimed her policy was equal treatment. However, the Air Force
believed the policy was playing games with its ability to recruit. The
Army believed the policy resulted in it being stonewalled. Then-Dean
Kagan was entitled to her opinion, but--no different than anybody else
in this country--she was not free to ignore the law. The Solomon
Amendment required that military recruiters be allowed equal access to
the university as any other recruiter.
The bottom line is that then-Dean Kagan refused to follow the law and
instead interpreted that law in accordance with her personal beliefs.
The Supreme Court unanimously rejected her legal position on the
Solomon Amendment and upheld our military.
I am concerned that Solicitor General Kagan will continue to use her
personal politics and ideology to drive her legal philosophy if she is
confirmed to the Supreme Court, particularly since her record shows she
has worked to bend the law to fit her political wishes.
Further, I am concerned with the praise Solicitor General Kagan has
lavished on liberal jurors who promote activist philosophies such as
those of Israeli Judge Aharon Barak. Judge Barak is a major proponent
of judicial activism who believes judges should ``bridge the gap
between law and society.'' He also went on to say that we

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ought to use international law to advance a social and political agenda
on the bench.
At a Harvard law event attended by then-Dean Kagan, Judge Barak noted
with approval cases in which ``a judge carries out his role properly by
ignoring the prevalent social consensus and becoming a flag bearer of
new social consensus.'' When I asked General Kagan if she endorsed such
an activist judicial philosophy, she replied that Judge Barak's
philosophy was something ``so different from any that we would use or
want to use in the United States.'' But that contradicts her previous
statement about Judge Barak that he is a ``great, great judge'' who
``presided over the development of one of the most principled legal
systems in the world.'' I am not able to ascertain if Solicitor General
Kagan agrees with Judge Barak or if she rebukes his positions, so I am
left to believe she endorses the judicial method of what she calls her
``judicial hero'' and his views on judicial restraint or lack thereof.
I cannot support a Supreme Court nominee whose judicial philosophy
endorses judicial activism as opposed to judicial restraint.
With respect to the second amendment, General Kagan testified that
the Heller and McDonald cases were binding precedent for the lower
courts and due all the respect of precedent. However, I worry that, if
confirmed, her deeply engrained personal belief will cause her to
overturn this precedent because she does not personally agree with
those decisions or the constitutional right to bear arms. At the
hearing, Solicitor General Kagan was unwilling to discuss her personal
views on the second amendment or whether she believes the right to bear
arms is what it is today--a fundamental right. When I asked her about
her thoughts on the issue, she simply replied that she ``had never
thought about it before.'' I also asked her whether she believed self-
defense was at the core of the second amendment. She could only
respond: ``I have never had the occasion to look into the history of
the matter.'' As a former constitutional law professor both at Chicago
and Harvard, Solicitor General Kagan's response ought to be troubling
to anybody who heard it.
A key theme in the U.S. Constitution reflects the important mandate
of the Declaration of Independence. It is the recognition that the
ultimate authority of a legitimate government depends on the consent of
a free people, the ``consent of the governed.'' As Thomas Jefferson
wrote:

We hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life,
Liberty, and the pursuit of Happiness. That to secure these
rights, Governments are instituted among Men deriving their
just powers from the consent of the governed.

As former Attorney General Edwin Meese explains:

That all men are created equal means that they are equally
endowed with unalienable rights. . . . Fundamental rights
exist by nature, prior to government and conventional laws.
It is because these individual rights are left unsecured that
governments are instituted among men.

So I am concerned that Elena Kagan refused to agree with my comments
about the Declaration of Independence--that there are such things as
inalienable rights and if government does not give, government cannot
take away.
Similarly, Senator Coburn asked General Kagan if she agreed with
William Blackstone's assessment about the right to bear arms and use
those arms in self-defense. She replied:

I don't have a view on what are natural rights, independent
of the Constitution.

If you don't have a view about rights that existed before the
Constitution was ever written, do you have the knowledge to be a
Supreme Court Justice?
So this is concerning to me because, as one commentator stated:

A legal scholar with no take on such a fundamental
constitutional topic [of which individual rights qualify as
natural or inalien in character] seems at best disingenuous
and at worst, frightening. How can one effectively analyze
and apply the Constitution without a firm grip on what basic
freedoms underlie our founding documents and national social
compact? How can one effectively understand the original
intent of the Framers without any opinion on the essential
place of certain liberties within the American legal
framework?

Bottom line: The fact that General Kagan refused to answer our
questions about her personal opinions on the right to bear arms leads
me to conclude that she does not believe people have a natural right of
self-preservation, unrelated to the Constitution.
I am concerned about Solicitor General Kagan's views on our
constitutional right to bear arms not only because of her anti-second
amendment work during the Clinton administration but also in light of
her memo in the Sandidge case when she clerked for Justice Marshall. In
her memo, she summarily dismissed the petitioner's contention that the
District of Columbia's firearm statute violated his second amendment
right to keep and bear arms. Instead of providing a serious basis for
her recommendation to deny the certiorari, her entire legal analysis of
this fundamental right consisted of one sentence: ``I am not
sympathetic.''
A further basis for my concerns about whether she will protect or
undermine the second amendment if she is confirmed is the decision of
the Office of Solicitor General under her leadership not to even submit
a brief in the second amendment McDonald case. Solicitor General
Kagan's record clearly shows she is a supporter of restrictive gun laws
and has worked on numerous initiatives to undercut second amendment
fundamental rights. So, not surprisingly, as Solicitor General, she
could not find a compelling Federal interest for the United States to
submit a brief in a case that dealt with fundamental rights and the
second amendment of the Constitution. This was a case that everyone
knew would have far-reaching effects. It is apparent that political
calculations and personal beliefs played a role in Solicitor General
Kagan's decision not to file a brief in this landmark case to ensure
that constitutional rights of American citizens were protected before
the Supreme Court.
With respect to the Constitution's commerce clause, Solicitor General
Kagan was asked whether she believed there are any limits to the power
of the Federal Government over the individual rights of American
citizens.
Unfortunately, her response didn't assure me that, if confirmed, she
would ensure that any law Congress creates does not infringe on the
constitutional rights of our citizens. Specifically, Senator Coburn
asked her whether she believed a law requiring individuals to eat three
vegetables and three fruits a day violated the commerce clause. Though
pressed on this and other lines of questioning on the commerce clause,
she was unwilling to comment on what would represent appropriate limits
on Federal power under the Constitution--and probably the commerce
clause has been used more than any specific power of Congress for
greater control of the Federal Government over State and local
governments or over the economy and probably depriving individual
rights in the process.
I am not sure Solicitor General Kagan understands that ours--meaning
our government--is a limited government and that the restraints on the
Federal Government's power are provided by the Constitution and the
concept of federalism upon which our Nation is founded. The powers of
the Federal Government are explicitly enumerated in article I, section
8 of the Constitution. Further, the 10th amendment provides that the
powers not expressly given to the Federal Government in the
Constitution are reserved to the States.
The Founding Fathers envisioned that our government would be
constitutionally limited in protecting the fundamental rights of life,
liberty, and property and that the laws and policies created by the
government would be subject to the limits established by the
Constitution. As James Madison wrote in Federalist No. 45, ``The powers
delegated by the proposed Constitution to the federal government are
few and defined. Those which are to remain in the State government are
numerous and indefinite.''
I am not convinced the Solicitor General appreciates that there are
express limits the Constitution places on the ability of Congress to
pass laws. I am not persuaded by her nonanswers to our commerce clause
questions that she won't be a rubberstamp for unconstitutional laws
that threaten an individual's personal freedoms.

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With respect to the institution of marriage, I am concerned with
Solicitor General Kagan's ability to disregard her own personal beliefs
in order to defend the Defense of Marriage Act. Under her supervision,
the United States filed a brief stating that ``the Administration does
not support DOMA as a matter of policy, believes that it is
discriminatory, and supports its repeal.'' At the hearing, she refused
to say whether this was an appropriate statement to make considering
that it is the duty of the Solicitor General to vigorously defend the
laws of the United States. How are we to believe she will uphold a law
as a Supreme Court Justice when she disagrees with that law? When she
was tasked as the government's lawyer to vigorously defend the law,
clearly she put her personal politics and beliefs first. It is obvious
that supporting the repeal of a law is not vigorously defending that
law.
There are other occasions where General Kagan's personal beliefs
rather than the law appear to have guided her decisions as Solicitor
General. For example, with respect to her handling of the lawsuits
attempting to overturn the don't ask, don't tell policy, she didn't
file an appeal in the Witt v. Department of the Air Force case to
uphold the constitutionality of the law, even though there was a split
in the circuit courts on this issue. I have already discussed Solicitor
General Kagan's actions at Harvard Law and how she thwarted our
military's recruitment efforts because of her deeply held views against
the don't ask, don't tell policy. I cannot imagine that her personal
opinions on this matter did not play a role in decisionmaking at the
Solicitor General's Office with respect to the Witt case.
I am also concerned about Solicitor General Kagan's views on property
rights. The fifth amendment states that the government ``shall not take
private property rights for public use without just compensation.'' In
2004, the Supreme Court took an expansive view of the words ``public
use'' in Kelo v. City of New London, allowing the government to take
private property so that it could be transferred to another person
promoting economic development. At the hearing, Solicitor General Kagan
refused to comment on whether she believed the Court had correctly
interpreted the text of the Constitution in the Kelo case. She also did
not elaborate on any limits to the government's ability to take private
property. I am concerned that she does not agree that the ruling in
Kelo undermines citizens' property rights contained in the
Constitution.
Solicitor General Kagan's view of the role of international law is
disturbing. At the hearing, she stated that a Justice could look to
international law to find ``good ideas'' when interpreting the U.S.
Constitution and our laws. However, when I pressed her on which
countries a Justice should look to in order to find those ``good
ideas,'' she refused to answer.
I am unaware of how international law can help us better understand
our great Constitution. That is because international law should not be
used to interpret our Constitution. When we begin to look to
international law to interpret our own Constitution, we are at a point
then where the meaning of the U.S. Constitution is no longer determined
by the consent of the governed.
The importance Solicitor General Kagan places on international law is
made abundantly clear by her actions as dean of Harvard, when she
implemented a curriculum mandating that all first-year law students
take international law. She said that the first year of law school is
the ``foundation of legal education,'' forming lawyers' ``sense of what
the law is, its scopes, its limits, and its possibilities.'' Yet, U.S.
constitutional law, the class that teaches the founding document of our
legal system--a class that almost every other law school in the country
believes first-year students should have--is not a mandatory first-year
course at Harvard Law.
I don't disagree that it is helpful for students to understand
international law, but I question why it should be a first-year
requirement and thus mandatory to graduate--especially when U.S.
constitutional law is not required to graduate from Harvard Law School
at all--yes, hard to believe; a student can graduate from Harvard Law
without having to take a single constitutional law class.
When General Kagan was asked about this, she answered:

Constitutional law should primarily be kept in the upper
years, where students can deal with it in a much more
sophisticated and in-depth way.

This may seem reasonable, but it does not address why a student is
never required to take a constitutional law class to graduate. Because,
as dean, she never saw the need to make constitutional law a
requirement to graduate, then I am led to believe Solicitor General
Kagan believes international law is more important than U.S.
constitutional law. This is remarkable--or maybe I should say it is
shocking--considering that the Constitution of the United States is our
most fundamental law.
I am deeply concerned then that if confirmed to the Supreme Court,
General Kagan will put her own strongly held personal views above that
of the Constitution and the law.
Throughout her life, Solicitor General Kagan's background has allowed
her to work without having to check her political and ideological
views. Her experiences throughout her life have allowed her to indulge,
reinforce, and ultimately submit her deeply ingrained liberal beliefs.
In my opinion, her record strongly suggests she will not be able to act
in an unbiased manner as a Justice.
Her answers and evasions to our questions at the Judiciary Committee
hearing also raise serious concern about her ability to set aside her
personal political goals when interpreting the Constitution. I am
convinced that once confirmed to the Court, her ``finely tuned
political antenna'' and her ``political heart'' will drive her judicial
method, rather than judicial restraint.
At the hearing, General Kagan tried to distance herself from her
Oxford thesis, where she embraced judicial activism. In that thesis,
she wrote that ``it is not necessarily wrong or invalid'' for judges to
try to ``mold and steer the law in order to promote certain ethical
values and achieve certain social ends.'' Our great American tradition
and the U.S. Constitution soundly reject the notion of judges
overstepping their constitutional role by implementing their personal,
political, and social goals from the bench. I am not convinced that, if
confirmed, General Kagan will actually be able to resist the temptation
to do that. That is because I believe her judicial philosophy is really
nothing more than a political philosophy. This being the case, I am not
at all convinced she will be able to apply the law impartially and not
be a rubberstamp for the President or the leftwing interest groups'
political and social agenda.

Solicitor General Kagan acknowledged that it is ``difficult to take
off the advocate's hat and put on the judge's hat.'' Yet she could not
show us that she had the ability to make the transition from an
academic and political operative to what we believe ought to be a fair
and impartial jurist. Her testimony did not disprove her far-left
record or demonstrate she would not let her political views dominate
her approach to the law. I am not persuaded Solicitor General Kagan
will be able to overcome that difficulty and transition into an
unbiased judge, so I will vote no on her confirmation.
I yield the floor.
The PRESIDING OFFICER. The Senator from Florida is recognized.

Measure Read the First Time--S.J. Res. 38

Mr. LeMIEUX. Mr. President, as in legislative session, I understand
there is a joint resolution at the desk. I ask for its first reading.
The PRESIDING OFFICER. Without objection, the clerk will state the
title of the joint resolution for the first time.
The assistant legislative clerk read as follows:

A joint resolution (S.J. Res. 38) proposing a balanced
budget amendment to the Constitution of the United States.

Mr. LeMIEUX. Mr. President, I ask for a second reading, and in order
to place the bill on the calendar under the provisions of rule XIV, I
object to my own request.
The PRESIDING OFFICER. Objection is heard. The bill will receive its
second reading on the next legislative day.
Mr. LeMIEUX. Mr. President, I rise to speak on the President's
nomination

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of Elena Kagan to serve as an Associate Justice on the U.S. Supreme
Court.
First, I congratulate my colleague from Iowa for his tremendous
remarks this evening, as he went through the reasons he will not be
supporting Elena Kagan. I congratulate him on such a reasoned and
persuasive oration this evening.
Ms. Kagan has been nominated to fill the seat of Justice Stevens. I
had the opportunity, in 2004, to appear before the Court in the
position as deputy attorney general of Florida. During that time,
because Chief Justice Rehnquist was ill, Justice Stevens presided.
I think before I go into an evaluation of Solicitor General Kagan, it
is important to note what a historic figure Justice Stevens is to the
American bench and the bar.
Even before he began his 35 years of service on the Supreme Court, he
built a stellar reputation as a member of the bar as a lawyer and a
careful jurist. He graduated from Northwestern School of Law. He served
as a clerk to Supreme Court Justice Wiley Rutledge. Then he spent
nearly 20 years, from 1949 to 1969, as a practitioner of law and one of
the country's foremost experts on antitrust law. He taught courses at
the University of Chicago, he served on a Department of Justice
commission, and he authored various papers on antitrust issues.
It was in 1970 that President Nixon appointed Justice Stevens to the
U.S. Court of Appeals for the Seventh Circuit. After 5 years of service
there, he was elevated to the Supreme Court.
His service to this country should be remembered, and he gets our
thanks. On behalf of a grateful nation, I send my gratitude to him for
his unique and important service to this country.
In evaluating a nominee to the U.S. Supreme Court, we in the Senate
exercise a solemn obligation. It is a rare time in our constitutional
democracy when the three branches come together in one proceeding. One
of those is the unfortunate proceeding of impeachment. Thankfully, that
is not why we are here. But the other is this proceeding--a proceeding
when the President submits for consideration a judicial nominee who is
then evaluated by this body under the advice and consent clause of
article II, section 2, clause 2 of the U.S. Constitution.
That clause reads, in part:

[The President] shall have Power, by and with Advice and
Consent of the Senate, shall appoint Ambassadors, other
public Ministers and Consuls, Judges of the supreme Court,
and all other Officers of the United States. . . .

While we do have that advice-and-consent role on a normal occasion
for those other officers, for judges of the lower courts, for ministers
and the like, it is a rare occurrence when this body has the honor and
opportunity to evaluate a Supreme Court nominee. Because it is a rare
occurrence and because this is a lifetime appointment to the head of
one of the branches of our coequal government, we have a solemn
responsibility to do our job and understand what our job is.
In preparing for this responsibility of providing advice and consent
and in being a lawyer who wanted to do a good job and be lawyerly about
this work, I took the opportunity to try to study up on what our
opportunity and responsibility is in this confirmation of a Supreme
Court Justice.
What do these terms ``advice and consent'' mean and what is our
responsibility and how do we undergo that responsibility to fulfill our
constitutional obligation? Certainly, in order to fulfill it, we must
understand it.
What does advice and consent mean? Advice certainly means to provide
information, counseling, and to give some feedback to the President of
the United States as to a nominee. It seems to be more of the role of a
counselor than anything else. But of the two words, it is not the most
weighty.
The most weighty of the two is consent. In fact, the advice-and-
consent function is not found within the enumerated legislative powers.
Article I of the Constitution holds those responsibilities. Advice and
consent is found in article II, which enumerates the powers of the
executive branch, of the President. Advice and consent is shown as a
limitation on the President's power. The President cannot just put
whomever he or she wishes on a court. He can only do so with the advice
and consent of this body. In fact, our Founders did not place this
responsibility in both the House and the Senate. They solely put that
responsibility among the Members of this body. ``Consent'' being the
operative and, in my mind, meaningful term because without our consent,
the nominee is not confirmed.
Our responsibility is not trivial, and we are certainly not here to
be a mere rubberstamp on the President's nomination. It is our
obligation to thoroughly evaluate and provide that consent because, but
for our consent, the nominee will not be seated.
How do we execute that responsibility? What does it mean to provide
consent and how should we do it?
Certainly, we have to look at the nominee and the applicant. We have
to see that the person will be a person of integrity, that they are
thoughtful, that they have experience, and that they will uphold the
obligations of a Supreme Court Justice.
Last May, when I started my work of trying to evaluate how I would
fulfill my constitutional obligation and started to do some reading of
prior confirmation proceedings, the writings of Senators who have come
before me, I came upon what I believe is a four-part criteria to
evaluate a nominee to the Nation's highest Court.
It should be stressed how important a position this is. There are
only nine Justices who sit atop the judicial branch, and they are
appointed for life. There is no other portion of government where this
is true, to be head of a coequal branch for life--Justice Stevens
serving 35 years on the U.S. Supreme Court.
What criteria should we use? I propose the following: One, a nominee
should present a robust body of work. Why? Because there needs to be
something for us to evaluate. We need to have the ability, in providing
our consent function, to look at a body of work so we can properly
execute our responsibility.
This does not mean, nor do I believe, that it is required for a
nominee to the U.S. Supreme Court that they have been a judge. In fact,
our Constitution provides no requirements for a judge to serve on the
U.S. Supreme Court. This is unlike what we see in the Congress. There
are specific requirements of how old you have to be to be in the House,
to be in the Senate, how many years you must be a resident of this
country. The same requirements apply to the President. There are no
requirements for a judge as it is stated in the Constitution, for a
Justice of the Supreme Court.
In evaluating that there are no requirements, we certainly need to
know what the Justice stands for and how the Justice will fulfill his
or her obligations on the Court. Without a body of work, that is very
difficult to evaluate. While there is no requirement that one be even,
in fact, a lawyer, although every person who has been confirmed has
been a lawyer, and there is no requirement that you be a judge, if you
are not a judge, you do not have a robust body of work for us to
evaluate. That makes it more difficult on our part to make a decision
of whether we should give our consent and, I suggest, it provides an
additional burden to the nominee to be forthcoming when answering
questions. Since we do not have a body of work to evaluate, since we
cannot look at prior decisions that a judge has handed down, to know
how a judge ruled in the past and, therefore, glean how the judge will
rule in the future, that nominee must be forthcoming so we can hear how
he or she will do his or her job as a Justice.
Second, the nominee must demonstrate an unfailing fidelity to the
text of the Constitution and proper restraint against the temptation to
expand judicial power. Why do we find this important? I will talk about
this more in a minute. It is because we have a separation of powers and
checks and balances that were imbued in our Constitution by our
Founders. They intended for our government to be counterbalanced by
each branch--the legislative, the judicial, and the executive.
It is the beauty of the Constitution that no branch will exert too
much authority because it will be checked by the other, each branch
having checks on the other. Furthermore, sometimes forgotten, is that
the Federal Government is part of a federalist society. We

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are a Republic, and the Federal Government is only one piece of the
governmental structure. The rest are the governments of the States and
the powers and rights which are left to the people under our
Constitution. Our Founders sought checks and balances between the
Federal Government and the State governments and the people as well.
A nominee must understand that the judiciary cannot expand its role
beyond the confines our Founders intended. In fact, we know our
Founders intended for the judiciary not to serve as a legislative
branch because in article II, the legislative power is vested solely in
the Congress.
For a judge or Justice to take on a legislative role, to not have a
firm adherence to the law as written, violates the separation of
powers, violates the rights and responsibilities of the Congress.
Third, the nominee must make determinations about the meaning of
Federal law and the Constitution and apply the law as written, again,
because of that separation of powers.
Fourth, the nominee must understand the Court's role in stopping
unconstitutional intrusions by the elected branches. Our Founders knew
each branch of government would seek to expand the scope of its power.
That is the beauty of the checks and balances system--to keep each body
in check. They did not want a strong executive. They worried about the
tyranny of the executive. But they also worried about the tyranny of
the legislative. Nor did they hope the judiciary would become too
strong.
Alexander Hamilton wrote in Federalist No. 78 that ``it is the courts
that will serve as the bulwarks of limiting Constitution against
legislative encroachment.''
Our Founders designed this intricate system of checks and balances to
keep all the governmental bodies and institutions in check, to not
expand to the detriment of another body, to not expand to the
detriments of our rights and the rights of the States.
In evaluating Solicitor General Kagan--and I note also in comparing
her to Justice Stevens--I find she does not have the experience that
gives us the opportunity to evaluate her work, to determine what kind
of judge or Justice she would be.
In preparing for this decision, I went back and I read a book that
was written by one of our predecessors, Senator Paul Simon. It was a
book he published in 1992. The book is called ``Advice and Consent.''
The book concerns the confirmation hearings of Justice Bork and Justice
Thomas.
Interestingly, in this book--and it is a very fine book and I commend
anyone who is interested in this topic to read it--there is a foreward
in the book by Laurence Tribe, the famous constitutional scholar, at
the time the Tyler Scholar of Constitutional Law at Harvard University,
with whom I believe Solicitor General Kagan served when she was the
dean of Harvard Law School.
In this foreward, I think that Professor Tribe provides a very cogent
and focused analysis of the problem we experience in the modern
confirmation setting where nominees fail to provide sufficient answers
to questions.
Why this is so troubling with Solicitor General Kagan is because we
do not have the body of work to evaluate. It has been the course, in
the past 20 years, that it seems all the nominees to the Supreme Court
give these sort of vapid answers. That is not my phrase. That is, in
fact, her phrase. We will talk about that in a moment--vapid answers
that come from questions from the Senators on the Judiciary Committee,
failing to articulate what your position is on a particular point of
law, all the more concerned when we have no record to evaluate.
Here is what Professor Tribe said:

The Court and the Nation cannot afford any more ``stealth''
nominees who steadfastly decline to answer substantive
questions the Senate might pose on the oft-invoked ground
that the matter might come before the Court during their
possible tenure. This easy refrain does not provide a valid
excuse for stonewalling, no matter how frequently it is
repeated . . .
On the contrary, the adversary system works best when all
concerned, and not just those who nominated the judge, know
what there is to be known about the judge's starting
predispositions on a pending issue. And let's stop pretending
that such predispositions do not exist. It hardly fosters
fairness to claim that a mind is completely neutral when in
fact a lifetime of experiences has unavoidably inclined it
one way or another and to other, and to equate an open mind
with a blank one insults the intelligence of all concerned.

He goes on to say:

A nominee whose record is too pale to read with the naked
eye or whose views are shrouded in fog too dense for anything
but the klieg lights of national television to pierce is
probably ill-suited for a lifetime seat on the Supreme Court
in any event.

Let me repeat:

A nominee whose record is too pale to read with the naked
eye or whose views are shrouded in fog too dense . . . is
probably ill-suited for a lifetime seat on the Supreme Court.

Mr. President, unfortunately, that describes Solicitor General Kagan.
She is an extremely bright and articulate woman. She has a tremendous
academic background. I commend her for her public service--of serving
in a Presidential administration. I commend her for serving as dean of
a law school. That too is public service. But our job is to evaluate
these nominees, and we cannot evaluate them if they have no record of
how they would rule or how they have ruled, and they provide no
sufficient information when they come before the Judiciary Committee of
this body. Without that information, how can we faithfully provide our
consent?
There is a notion in the law of consent needing to be informed. In
fact, it can't really be consent in the law if it is not informed. Yet
Solicitor General Kagan, without a judicial record and a failure to
directly and clearly answer questions, as Professor Tribe writes, fails
to give us the information to allow us to give consent in an informed
way.
We need to look no further than her own words when she wrote, in a
spring 1995 Law Review article. It was a comment on a book that was
talking about the confirmation mess, and then-Professor Kagan, also
bemoaning the state of confirmation hearings, said:

She described the process before the Judiciary Committee as becoming
vapid, and, unfortunately, even though she should know more than anyone
else--because those were her words, the charade that she condemned in
her article in the 1990s--she engaged in the same charade when she
appeared before the Judiciary Committee.
``A nominee whose record is too pale to read with the naked eye or
whose views are too shrouded in fog . . . is probably ill-suited for a
lifetime appointment,'' said Professor Tribe.
Ms. Kagan also has very little practical experience. Unlike Justice
Stevens, who practiced law for 20 years, Ms. Kagan practiced law for 2.
Never having served before as a judge, we don't know her record. She
said that the confirmation proceedings in the past had an ``air of
vacuity and farce,'' a ``vapid and hollow charade.'' Instead of
following her own admonishment, she participated in that charade. She
engaged in the same vapid exercise that she condemned.
The burden was on Ms. Kagan to demonstrate how she would rule as a
judge. With no record for us to evaluate, she could not engage in the
same charade that she had previously condemned and leave us with
nothing to know as to how she would act in a lifetime appointment--an
appointment, if Justice Stevens' record is any sort of indication of
how long a ``Justice Kagan'' might serve, for 35 years.
I have an obligation, Mr. President, under article 2, section 2 to
provide advice and consent, and I cannot do so where the nominee cannot
or does not provide a record that my colleagues and I can evaluate. We
are left without a solid basis upon which to judge how she would judge.
During the Judiciary Committee proceedings, she said she would give
binding precedent all the respect of binding precedent. That is
meaningless. It gives us no indication of how she might make her
decisions, how she might rule.
So I am left with these serious concerns. I am left with the serious
concerns about her commitment to uphold the constitutional principle of
a limited government, the fundamental protections of the second
amendment, and

[[Page S6675]]

placing law ahead of her personal and political views.
I spoke before about one of these criteria being the fidelity to the
Constitution and the principle of a limited Federal Government.
``Thomas Jefferson warned us that our written constitution can help
secure liberty only if it is not made a blank paper by construction.''
Ms. Kagan testified that her whole life provided indications of what
kind of judge or Justice she would be. And in that statement I agree.
As mentioned earlier, before law school, when she was writing a
thesis at Oxford, she stated that ``new times and circumstances demand
a different interpretation of the Constitution,'' and that judges may
``mold and steer the law in order to promote certain ethical values and
achieve certain social ends.'' That is not what the Founders intended
for a Justice of the Supreme Court.
In that same thesis, she wrote:

The judge's own experience and values become the most
important element in the decision. If that is too results
oriented, so be it.

Mr. President, that is a violation of the constitutional requirement
that all power legislative be vested in this Congress.
I was concerned about the colloquy that she had with Senator Coburn.
In fact, it was something I discussed with her in person prior to her
testimony before the Judiciary Committee. This colloquy was about the
commerce clause and whether or not it was limited. Remember that our
Founders intended for the Federal Government to be limited in its
powers. That is why there are enumerated powers in article 1. They are
not plenary; they are limited by their number.
Senator Coburn asked her about sponsoring a bill, about requiring
Americans to eat their fruits and vegetables, and it got a response
from Solicitor General Kagan that it ``sounds like a dumb law.'' But
Senator Coburn asked whether or not it would be constitutional and she
failed to provide an answer.
Senator Coburn then put the meat on the bones and asked:

What if I said that eating three fruits and three
vegetables would cut health care costs by 20 percent? Now
we're into commerce. And since the government says that 65
percent of all the health care costs [are because of health
care], why isn't that constitutional?

No real meaningful answer to give clarity of how Solicitor General
Kagan as Justice Kagan would rule.
Mr. President, the Federal Government has expanded its powers beyond
what our Framers intended--far beyond what our Framers intended. James
Madison, in Federalist 45, said:

The powers delegated by the proposed Constitution to the
federal government are few and defined. Those which are to
remain in the State governments are numerous and indefinite.

But that is not how our constitution is modernly interpreted. We are
away from what our Founders intended. We are away from the clear
meaning of the words of the Constitution. And Solicitor General Kagan
doesn't tell us that the commerce clause has a limit, in her view. And
it is through the commerce clause that this Congress and Congresses in
the past have sought to enter and to invade every portion of life in
this country--things in which our Founders never intended the Federal
Government to be involved.
It appears Ms. Kagan has this same view of an expansive Federal
Government--a Federal Government that makes States its dependents and
apparatuses thereto, a Federal Government that has no limits, a Federal
Government that can invade every portion of our lives, a Federal
Government that is too vast, too expensive and beyond what our Founders
intended.
I am also concerned about Solicitor General Kagan's views on the
right to bear arms enumerated in the second amendment. I think she has
too little regard for some of our Constitution's most fundamental
protections. As a law clerk, she was dismissive of the second
amendment, saying she was not sympathetic to the amendment.
During the Clinton administration, she developed numerous anti-second
amendment initiatives. In her confirmation process for Solicitor
General, she declined to comment on second amendment rights.

There was a discussion earlier of my friend and colleague from Iowa
talking about natural rights. I think it is important for us to
remember the setting upon which our Framers brought this constitution
to bear. There were the Articles of Confederation--a loose arrangement
between the States where there was no central government. The Founders
took it upon themselves to seek to enact a stronger Federal system but
a system that, as the 9th amendment, the 10th amendment and other
provisions of the Constitution show, leaves rights to the States and to
people; that enumerates specific powers of the Federal Government.
Remember, initially, there were not even the first 10 amendments.
Remember, there was a confirmation battle as to whether the States
individually would ratify the Constitution. There were anti-Federalists
who thought the constitution had gone too far and given too much
authority to the Federal Government, and our Founders Hamilton, Madison
and Jay, in writing the Federalist Papers, had to make the case of some
form of central government. But they gave the assurances that most of
the obligations to govern would be left to the people and the States.
Ms. Kagan doesn't have that view, it appears.
Finally, I am concerned about the way that then-Dean Kagan treated
the military as the dean of Harvard Law School. I think it is
outrageous that the U.S. military was not allowed to recruit on campus
while she was the dean of the law school. And this idea that the
military could go through another part of the school--the Veterans
Association but not the Career Services Office--is outrageous. The
Veterans Association had no funding, no office. It was not set up to
allow law students to interview with the military.
Some have called this the same as ``separate but equal.'' It was not
even equal. It is outrageous. It is outrageous beyond the fact that
Harvard received Federal dollars. It is outrageous that a premier
institution such as Harvard University, one of our first institutions
of higher learning, known throughout the world as being an exceptional
school, would not allow the military the benefit of its students to
serve by being interviewed on campus, in a regular on-campus process in
which every law firm or other agency of government is allowed to
participate. And that is a decision that she presided over. That is an
error of judgment.
But I also believe that it was an error of law. In 1996, Congress
passed the Solomon Amendment allowing the Secretary of Defense to deny
Federal grants to institutions of higher education if they prohibited
ROTC or military recruitment on campus. Under the Harvard Law School
antidiscrimination policy, the military was banned from utilizing its
services, and it was concluded that, therefore, those Federal funds
would be suspended.
Ms. Kagan refused to abide by that Solomon Amendment when she was the
dean. In 2002, Harvard was informed by the Department of Defense its
practice of letting military recruiters contact students through the
Harvard Law School Veterans Association, but not the Office of Career
Services, violated the Federal law. In response, Dean Kagan filed a
brief challenging the constitutionality of the Solomon Amendment, which
is her right--not a good decision but her right.
The Court of Appeals for the Third Circuit enjoined the law. And Ms.
Kagan reinstated Harvard's, in my view, discriminatory policy.
Now, you might say: Well, the court ruled; therefore, it was
appropriate for her, if she so chose, to go back to the previous policy
because that had been enjoined. However, Massachusetts is not in the
Third Circuit, it is in the First. An appellate decision in the Third
Circuit is not binding on the First Circuit. If Dean Kagan wanted to go
to court again and seek to have it applied, that would have been one
thing. What she did instead is unilaterally follow a decision that had
no effect upon her and, in my view, violates the law.

Again, I think Solicitor General Kagan is an extremely intelligent
person, an articulate person. I think that she has a commendable career
of public service. But she has failed to meet the burden that is
required of someone with no judicial record. She has failed to inform
us of how she would judge as a member of the U.S. Supreme Court.

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With no record to read, there is heightened scrutiny on the nominee,
and we did not have the opportunity to have full and forthcoming
answers from Ms. Kagan. Instead, what we had was the same vapid and
vacuous answers that she condemned in her law review article in the
mid-1990s, the same type of charade Lawrence Tribe said makes somebody
ill-suited for a lifetime appointment, with such a thin record.
If perhaps she would have been more forthcoming, I would have been
able to come to a different conclusion. But when you take the lack of
her record, her inability to provide clear responses to questions to
give us indication of how she would rule, and the concerns about the
second amendment, about how she treated the military at Harvard, and
her views about the activism of the Court--in light of all those
reasons, I will be voting no on Ms. Kagan's confirmation.
I yield the floor.

____________________