[Congressional Record Volume 156, Number 117 (Wednesday, August 4, 2010)]
[Senate]
[Pages S6715-S6722]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Authorizing Settlement Funding
Mr. WARNER. Mr. President, I rise today, as this Chamber debates the
nomination of Elena Kagan--someone I am looking forward to supporting
when we vote--to raise another issue of ensuring justice in our
country, an issue the Presiding Officer, I know, has been concerned
about as well, and that is urging this Chamber to take action and
approve funding for the settlement of racial discrimination claims made
by thousands of African-American farmers.
This is an issue with which I have dealt for years, first as Governor
of Virginia, now as a Senator. This issue was first brought to my
attention by John Boyd, who is a fourth generation African-American
farmer from Southside, VA. He founded the National Black Farmers
Association in 1995.
He and a group of other African-American farmers brought forward a
series of claims that were finally addressed in a lawsuit named Pigford
v. Glickman. That lawsuit concerned allegations that the U.S.
Department of Agriculture had denied farm loans and other services to
African-American farmers between 1983 and 1997, although I think
history will show those acts of discrimination long preceded 1983.
That case was settled in 1999. But due to very tight deadlines,
thousands of farmers missed the deadline to file their complaints.
An estimated 74,000 Black farmers now await approval of funding by
this body, following the announcement of a settlement of these
additional claims by the USDA in February of this year. The USDA has
acknowledged these claims. They have agreed to a settlement. These
funds have been appropriated. This funding has been paid for.
According to Mr. Boyd, this effort, if we can get this funding
approved, will mark the seventh time the Senate has tried to act on
providing the Black farmers settlement money.
I have to say that as we debate the nomination of a very talented
individual to serve on the Supreme Court and we hear folks on both
sides of the aisle talk about American justice and American
jurisprudence, it is a varnish on that record and, to a certain degree,
on this body that we in the Senate have not acted to make sure that
close to $1 billion in these settlement claims--again, that have been
authorized by USDA--that those funds are not fully appropriated and
approved by this Senate body for these farmers, many of whom have been
struggling for decades, some who struggle due to the discrimination
that has been acknowledged by our own Department of Agriculture. We
have not acted. Senate procedure has gotten in the way of authorizing
payment of these funds.
Now it is the time to act. This week the Senate has the opportunity
to finally authorize funding of the settlement costs and turn the page
on past discriminatory practices.
As I stated earlier, this legislation is fully paid for and there
does not appear to be any substantive opposition to honoring the terms
of this settlement.
I know we are all anxious to vote on Elena Kagan. I know many of us
are anxious to vote on the small business legislation. I know we are
all anxious, as well, for the August recess to start. As we go through
this process on a matter that reflects on the integrity of this body,
reflects on the value of our jurisprudence system, as we think through
trying to get out of town and getting home, I hope our leaders can come
together and act to make sure that these Black farmers, many times
waiting literally for decades for the appropriate compensation that
everyone throughout the judicial system has said is owed to them, that
in this rush to get out and get back home, the Senate can finally take
action in the Pigford case and these farmers can receive their
appropriate compensation.
I again thank those involved in this action. I particularly thank Mr.
John Boyd, as I mentioned, from Southside, VA, who has been a
passionate and tireless leader on this issue for more than two decades.
I see my good friend, the Senator from Delaware, is here to speak on
behalf of Elena Kagan. I know he and the Presiding Officer have also
raised this issue making sure these Black farmers get--not their day in
court; they have had their day in court, but they are waiting for the
Senate to act on a noncontroversial issue so they can receive the
funding that is long overdue.
I yield the floor.
The PRESIDING OFFICER. The Senator from Delaware.
Mr. KAUFMAN. Mr. President, I associate myself with the remarks of
the Senator from Virginia. He is right on point. This is not about a
trial. This is about people getting what they justly deserve. It is
time we do it. I thank him for coming to the floor and making that
argument.
I wish to speak tonight in support of the nomination of Solicitor
General Elena Kagan to be an Associate Justice on the Supreme Court.
On July 13, I first came to the floor and gave my reasons for
supporting this outstanding nominee. She has a superior intellect,
broad experience, superb judgment, and unquestioned integrity.
Throughout her career, she has
[[Page S6716]]
consistently demonstrated a first-rate intellect and an intensely
pragmatic approach to identifying and solving problems--two traits that
are indispensable in any great judge, and she will be a great judge. I
support her nomination with enthusiasm and without reservation.
I am here today not to repeat the basis for my support but to note
briefly two aspects of this debate that I find particularly troubling.
First, I have heard some of my colleagues attack this nominee based
on arguments she made and positions she took in her role as Solicitor
General in a particular case when she made this argument on behalf of
her client, the United States of America. That causes me great concern
because I think these kinds of attacks--think about it for a minute
now. She is not in a public forum. She is not giving a speech. She is
not writing an article. What she is basically doing in court is
representing the United States of America, making the argument that she
thinks is the best argument to carry for the United States of America.
And people pull that out on the Senate floor and read it and are
critical of it.
I can understand why one disagrees with the Solicitor General on an
argument they make. I can understand why one disagrees with the Supreme
Court. But to pull that out and use that against a nominee is very
troubling because it gets to the basic question of what is the job of a
litigator, of a lawyer, of a solicitor in making the argument for their
client.
Solicitors General are responsible for representing the United States
before the Supreme Court. They should be free to make all appropriate
arguments on their client's behalf without fear that those arguments
might someday be held against them if they happen to be considered for
another office.
The Solicitor General's role in selecting cases in which she must
represent the government is very limited, particularly in the many
cases in which the government is the respondent. We want lawyers
representing the United States in any court to do so zealously, well
within the bounds of the law. We should not give them reason to
hesitate about doing so by later treating those arguments as reflecting
their own personal, private beliefs, which they do not do.
I am reminded of the attacks we too often see on lawyers who
represent unpopular clients, with the suggestion being that the
lawyer's legal arguments must also reflect that lawyer's personal
views. Think about that. A lawyer gets on a case, a lawyer is doing pro
bono work, a lawyer has been assigned by a judge and makes an argument
in court for their client, trying to get their client cleared, and we
bring it back as if the lawyer is making that argument about
themselves. I have heard it too often on this floor and in committee.
Let's not forget that the American tradition of representing
unpopular clients is older than our Nation, dating at least as far back
as John Adams' representation of British soldiers charged in the Boston
Massacre. John Adams defended the British soldiers involved in the
Boston Massacre. Would it be fair to bring that up on the floor of this
body to say that he was in favor of the British soldiers and use that
against him if, in fact, he had been nominated to a position?
The vigorous defense of the United States requires that we not limit
its advocates to making only those legal arguments with which they
personally agree. I am surprised I even have to make that statement on
the floor.
More broadly, our adversarial system depends on advocates making all
proper arguments that are in the interest of their clients. I feel as
though I am in a lawyer 101 class. Why do I have to be saying this? It
is simply wrong to assume a lawyer's arguments reflect his or her
personal convictions. Again, lawyer 101. It is, therefore, also wrong
to oppose a nominee based upon proper arguments that a nominee has made
as a lawyer, regardless of whether an individual Senator regards those
arguments to be legally correct.
My second concern relates to the repeated and unjustified comments by
many of my colleagues regarding the word ``empathy,'' which they seem
to regard as a trait deserving of recrimination. Empathy, empathy,
empathy.
I commend to my colleagues a superb commentary on this point by Joel
Goldstein, distributed by the History News Network. I ask unanimous
consent to have this commentary printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From History News Service]
How Empathy Makes Superior Judges--and Justice
Critics ridiculed President Obama's statement that judges
should be empathetic. But as the Senate prepares to vote on
the Supreme Court nomination of Elena Kagan, legal historian
Joel Goldstein argues that senators should be looking for
that very quality.
In voting on President Obama's nomination of Elena Kagan
for the Supreme Court this week, senators should consider her
legal ability and constitutional vision, but also her
capacity to be an empathetic justice.
Republicans mocked President Obama when he suggested that
empathy was an important ingredient in a justice. In fact,
the president was simply repeating the insight Theodore
Roosevelt uttered more than a century ago when he explained
to his close friend, Sen. Henry Cabot Lodge, why he was
inclined to nominate Judge Oliver Wendell Holmes Jr. to the
Supreme Court.
T.R. recognized that those who become judges invariably
have had close association with wealthy and powerful people.
Those relationships dispose them to understand perspectives
of the successful classes. But would they give a fair shake
to the less fortunate who were outside the professional or
social circles that shaped and reflected their attitudes?
Roosevelt thought it ``eminently desirable'' that the
Supreme Court show its ``entire sympathy with all proper
effort to secure the most favorable personal consideration
for the men who most need that consideration.'' He
appreciated Holmes, who could ``preserve his aloofness of
mind so as to keep his broad humanity of feeling and
his sympathy for the class from which he has not drawn his
clients.''
If anything, Obama's comment was more neutral than
Roosevelt's. Roosevelt twice used ``sympathy'' which connotes
identification with, or bias toward, another. ``Empathy,''
Obama's misconstrued word, simply implies an understanding
of, and sensitivity to, the feelings or experiences of
another, not any predisposition in favor.
In context Roosevelt and Obama were making the same point,
that effective judging requires sensitivity to a wide range
of experiences. It is relatively easy for judges, like other
human beings, to relate to experiences and perspectives they
have shared. What's difficult, for judges and for the rest of
us, is to comprehend those to which we have not been exposed.
That reality sometimes inclines judges to favor those whose
positions and circumstances are familiar. The bias may be
unconscious but that does not make it any less real or
decisive or unfair.
The Republican Roosevelt and the Democratic Obama
recognized that empathy was an important corrective to these
hidden preferences. Far from conferring favoritism or setting
law aside, as Obama's critics contend, T.R. and Obama
understood that empathy is often a prerequisite for
impartiality.
Justice Holmes's great colleague, Justice Louis D.
Brandeis, captured the Roosevelt-Obama insight when he wrote
that ``knowledge is essential to understanding, and
understanding should precede judging.'' A judge cannot fairly
assess something he or she does not understand and they
cannot understand that which is unfamiliar if they do not
make a real effort to relate to it.
Whether Kagan is empathetic may determine how she will act
when the court faces the watershed cases that often define
the jurisprudence of a generation.
The quality of empathy, which Obama's critics ridicule, was
critical in decisions which all now celebrate. Brown v. Board
of Education declared racially segregated education a
violation of the Equal Protection Clause because it created
in African-American children a ``feeling of inferiority as to
their status in the community that may affect their hearts
and minds in a way unlikely ever to be undone.'' By viewing
the world from the perspective of black children, the court
identified the moral wrong in segregation even while some
strict constructionists saw the decision as lawless.
And imagine the national embarrassment America would have
been spared in Korematsu v. United States, the case that
sanctioned internment of loyal American citizens of Japanese
descent during World War II, had the court followed Justice
Robert Jackson's empathetic dissent, which, unlike the
majority opinion, tried to understand the impact of imposing
a racially motivated penalty on innocent Americans.
Although Roosevelt was a great Republican president of the
20th century and a hero to modern Republican luminaries such
as George W. Bush, John McCain, Karl Rove and others, the
idea's pedigree has not protected Obama from partisan
caricature of his commonsense observation.
That's too bad. It has led some to distort as inconsistent
with impartiality a quality that is really designed to help
achieve it.
To their credit, Theodore Roosevelt and Obama recognized
that a judge must make special efforts to understand the
thoughts and perspectives of those whose experiences
[[Page S6717]]
she has not shared. It's time for Obama's critics to stop
distorting his statement and pretending that this sensible
insight is subversive to the law or judging.
Let's hope that senators of both parties include this
bipartisan criterion as a desirable trait in a justice when
they debate and vote on the Kagan nomination this week.
Mr. KAUFMAN. Mr. President, as Professor Goldstein points out,
President Obama's interest in empathy in Supreme Court nominees follows
in the path of President Theodore Roosevelt who chose to nominate
Oliver Wendell Holmes in 1902 based in part on Holmes' capacity for
empathy.
Roosevelt said it was ``eminently desirable'' that the Supreme Court
make ``all proper effort to secure the most favorable personal
consideration for the man who most needs that consideration.''
I can understand concern about sympathy. I do not have it, but I
understand sympathy. But empathy? President Theodore Roosevelt was not
suggesting that Justices should somehow favor or advantage the
downtrodden; that is not what he was saying and that is not what
President Obama was saying when he was a Senator, only that they make
every effort to understand the position of the litigants from walks of
life different from their own.
Likewise, President Obama's promotion of empathy is not, as his
critics suggest, the advocacy of bias. ``Empathy,'' as a quick look at
the dictionary will confirm, is not the same as ``sympathy.''
``Empathy'' means understanding the experiences of another, not
identification with or bias toward another. Let me repeat that.
``Empathy'' means understanding the experiences of another, not
identification with or bias toward another. Words have meanings, and we
should not make arguments that depend on misconstruing those meanings.
Let me quote several insightful paragraphs from Professor Goldstein's
article about why empathy is important in judging. I quote Professor
Goldstein:
In context, Roosevelt and Obama were making the same point,
that effective judging requires sensitivity to a wide range
of experiences. It is relatively easy for judges, like other
human beings, to relate to the experiences and perspectives
they have shared.
All of us can do that. We can relate to the people we know around us.
We can relate to our experience. We can relate to people with whom we
went to school. We can relate to all those things.
What's difficult, for judges and the rest of us, is to
comprehend those to which we have not been exposed.
That reality sometimes inclines judges to favor those whose
positions and circumstances are familiar.
We all know that. There but for the grace of God go I, reasons why
juries will let someone go free.
The bias may be unconscious but that does not make it any
less real or decisive or unfair.
To continue the quote:
The Republican Roosevelt and the Democratic Obama
recognized that empathy was an important corrective to these
hidden preferences. Far from conferring favoritism or setting
law aside, as Obama's critics contend, T.R. and Obama
understood that empathy is often a prerequisite for
impartiality.
The quality of empathy, which Obama's critics parody, was
critical in decisions which all now celebrate. Brown v. Board
of Education declared racially segregated education a
violation of the equal protection clause because it created
in African-American children a ``feeling of inferiority as to
their status in the community that may affect their hearts
and minds in a way unlikely to ever be undone.''
The PRESIDING OFFICER. The hour controlled by the majority has
expired.
Mr. KAUFMAN. Mr. President, I ask unanimous consent for 1 more
minute.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KAUFMAN. I thank the Chair.
By viewing the world from the perspective of black
children, the Court identified the wrong in segregation even
while some strict constructionists saw the decision as
lawless.
I happen to think Elena Kagan is an outstanding nominee. I respect
the fact that others disagree. I truly do. I hope that as this debate
continues, we take care to make arguments that are fair expressions of
our very real disagreements and avoid arguments that chill legitimate
advocacy or deliberately misconstrue the words of others.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. COBURN. Mr. President, I am here to talk about the nominee, Ms.
Kagan, for the Supreme Court, but I thought I would put it in the
context of how I view what we are doing.
As a physician, a father, and a grandfather taking a look at where we
are as a nation, it is very worrisome to me. The 62 years I have lived
have been fraught with great opportunity, great challenges, but never
with a fear that what we have in this country may not last. I have to
admit to my colleagues that I have that fear now. And it is not an
unfounded fear. You see, this year we will borrow almost $1.6 trillion
from our grandchildren. We will borrow in excess of $4 billion a day--
money we don't have. At this moment, we owe $13.35 trillion. No
question, we are the biggest economy in the world, being fast caught by
other large economies.
The uniqueness of the American experiment could have been predicted
by those who studied republics because freedom and liberty were the
basis for such an explosion in growth and wealth and freedom and
standard of living. The poor in our country live far in excess of half
of the world's populations because of the great republic we are.
I believe we have a short period of time to right the ship for our
country. We have large disagreements in this body on how we do that,
and others' ideas have as much value as mine. But it is not debatable
the kind of trouble we are in as a nation. It is indisputable. We have
a mountain of debt, and we are going to have interest costs that are
going to chew up our freedom and chew up our children's prosperity and
opportunity over the years that lie ahead of us.
So we have great responsibility as we place somebody on the Supreme
Court. Our constitutional responsibility is to advise and either give
consent or not give consent. I have no doubts that my speech on the
floor this afternoon will change any Senator's mind. It won't. But what
I hope to do is to lay out the questions, as we put Ms. Kagan on the
Court, of where we will be with the basis of her philosophy. I have
served on the Judiciary Committee for almost 6 years. I have been
through four Supreme Court Justice hearings. I have met with four--
actually, more than four--prospective nominees to the Supreme Court,
and the responsibility is heavy.
Elections do have consequences. They give the President of the United
States the right to appoint, with advice and consent, all the judges in
this country, as well as numerous other officials. But none is greater
and none is more important than a Supreme Court Justice.
My concern with Ms. Kagan is whether she really believes in what our
Constitution says, and by her own words she fails to meet that test. So
I think it is time for an extra parameter to be considered in light of
the difficulties we face when we give consent for somebody who is going
to be in a lifetime position who will, I believe, have negative
consequences for our future. And I am going to spell out why I believe
that.
Ms. Kagan is a highly qualified woman who has attained much in her
young life. She is highly intelligent, highly articulate, and quite
pleasant. I believe she did the best job of at least letting us get to
see some of what she thinks of any of the Supreme Court nominees we
have heard, and I give her credit for that. But what I saw causes me to
shake in my boots, and let me tell you why.
Ms. Kagan made two critical statements. She believes Supreme Court
precedent trumps the original intent of our Founders. Think about that
for a minute. We just heard the Senator from Delaware mention Brown v.
Board of Education. Under that philosophy, reaching back to our
Declaration of Independence and our Constitution, Brown v. Board of
Education would never have happened. We would have had ``separate but
equal'' had we relied on Supreme Court precedent and not the underlying
body of our Constitution.
As I was reading recently, I came across something written by Calvin
Coolidge. He is not very often quoted in this body, and for some of
that I understand why.
But one of the other things Nominee Kagan did was she refused to
embrace natural rights in her testimony before the committee. You see,
the whole foundation for our country is based on the fact that the
rights we have are not given to us by the Congress of the
[[Page S6718]]
United States or the Government of the United States or the
Constitution of the United States; they are inherently ours. They are
inalienable rights--the right of life, the right of liberty, the right
to pursue happiness. We have a government to be a caretaker, to ensure
our rights are not infringed upon. So lacking that understanding--and
it wasn't just once that she was asked that; she was asked that in
terms of Blackstone's principles on the right of an individual to
defend their life. She does not embrace that concept. It was not only
evident in her plain words that she spoke but in her answers indirectly
to other questions.
So we have a Supreme Court nominee who believes that the wisdom of
men today, outside of the Constitution, based on precedent, trumps the
wisdom that was brought forth by our forefathers in both the
Declaration of Independence and the Constitution of the United States.
And there are other proofs for this that I will go through during my
speech to explain.
Listen to what Calvin Coolidge had to say:
About the Declaration there is a finality that is
exceedingly restful. It is often asserted that the world has
made a great deal of progress since 1776; that we have had
new thoughts and new experiences which have given us a great
advance over the people of that day, and that we may
therefore very well discard their conclusions for something
more modern. But that reasoning cannot be applied to this
great charter.
Or the Constitution that followed it.
If all men are created equal, that is final.
It can't be improved upon. It can only be lessened.
If all men are endowed with inalienable rights, that is
final.
It cannot be improved upon. It can only be lessened.
If governments derive their just powers from the consent of
the governed, that is final.
The power of the U.S. Government comes from the power we loan to the
government as people and citizens of the United States.
No advance, no progress can be made beyond these
propositions. If anyone wishes to deny their truth or their
soundness, the only direction in which he can proceed
historically is not forward, but backward toward the time
when there was no equality, no rights of the individual, no
rule of the people. Those who wish to proceed in that
direction cannot lay claim to progress. They are reactionary.
Their ideas are not more modern, but more ancient, than those
of the Revolutionary fathers.
Well said, Calvin Coolidge. Well said.
So we have before us a judge who said the following to me during our
hearing:
To be honest with you, I don't have a view of what are
natural rights, independent of the Constitution.
Oh, really? So we are going to have a Supreme Court Justice who has
no view of what our inalienable rights are other than what the
Constitution says? Where can that take us? It can take us anywhere she
wants to go, outside the bounds of the very liberties we loan to the
government to have a civil society.
If you look at the Declaration of Independence, it says:
We hold these truths to be self-evident--
Why aren't they self-evident to her? Why doesn't she hold an opinion
on them--
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 .
. .
We have inalienable rights. We have natural rights. Yet we are about
to put a Justice on the Supreme Court for life who, by her own words,
does not have a view of what are natural rights. I don't know anybody
who is an adult in this country who doesn't have a view of what they
think are their natural rights.
This is a quote from Elena Kagan:
In some cases original intent is unlikely to solve the
question, and that might be because the original intent is
unknowable or might be because we live in a world that's very
different from the world in which the framers lived. In many
circumstances, precedent is the most important thing.
No, that is just the opposite of what Coolidge had to say about the
Declaration of Independence, just exactly the opposite. More modern, we
got it right. Natural rights do not matter. Our wisdom, our intellect,
our arrogance--of a government and the governing body--has more import,
has more value, has more to do with what we do today than the wisdom of
those inalienable rights and the Constitution that came out of it.
Do you realize that in the Constitution, for every time it gives us a
responsibility, it says four or five times what we can't do? Because
the Framers were interested, and knowing the condition of men, that we
would abandon--our tendency would be to allow the concentration of
power to abandon those very principles they put into the Constitution.
What did Madison have to say, just on the general welfare clause of
the Constitution? He anticipated the Elena Kagans of this world. He
said:
With respect to the words general welfare, I have always
regarded them as qualified by the detail of powers connected
with them. To take them in a literal and unlimited sense
would be a metamorphosis of the Constitution into a character
which there is a host of proofs was not contemplated by its
creators.
You see, that is how we have gotten into trouble as a country. That
is why our economic future is not secure--because the Congress has
exceeded its authority under a limited Constitution and the courts have
failed to rein us in. They have failed to recognize their obligation.
So we are going to have someone who believes that the precedent and
wisdom of modern men is much more important than the original intent of
our Founders to keep us free, to secure our liberty, to provide our
inalienable rights to the pursuit of life, liberty, and the pursuit of
happiness.
Here is another area. If we read the Constitution and we read where
they have set up our judicial system, what they reference, they say:
The judicial power shall extend to all cases, in law and
equity, arising under this Constitution, the laws of the
United States, and treaties made, or which shall be made,
under their authority. . . .
They gave no wiggle room for the utilization of foreign law in
interpreting the U.S. Constitution--none. Here is Elena Kagan:
It may be proper for judges to consider foreign law sources
in ruling on constitutional questions.
Here is what the Constitution says. Here is what the nominee to the
Supreme Court says--exactly opposite of what the Constitution says. In
other words, it is OK to use any source of law you want, not the source
that the Constitution says you will be bound by in your oath.
Let's take it a step further, same quote: ``Judges can get'' good
ideas ``on how to approach legal issues from a decision of a foreign
court. It may be proper for judges to consider foreign law sources in
ruling on Constitutional questions.''
Here is their oath:
I do solemnly swear that I will faithfully and impartially discharge
and perform all the duties incumbent upon me as a justice under the
Constitution and laws of the United States. So help me God.
``Under the laws and the Constitution of the United States'' is not
foreign law. That is the U.S. Constitution and our statutes. So as soon
as she takes the oath, her very philosophy violates it because she
honestly testified that it is fine to use foreign law to interpret our
laws and our Constitution.
Again, how did we get in the trouble that we are in today? How did we
get that 20 years from now every man, woman, and child in this country
is going to be responsible for over $1 million worth of debt? How did
we get to the point where $350 billion of waste, fraud, and duplication
occurs every year in the Federal Government? How did we get to the
point that we can take people's rights away because we deem so in the
Congress, in our smart, modern wisdom that lessens liberty and freedom
throughout this land?
We do it because we do not use the book, and we don't follow the oath
that we are sworn to uphold; that is, the U.S. Constitution and the
laws of this land.
Then it comes to the commerce clause. Elena Kagan:
The commerce clause has been interpreted broadly. It's been
interpreted to apply to . . . anything that would
substantially affect interstate commerce.
When asked if a Federal law requiring Americans to eat three fruits
and three vegetables every day would be unconstitutional, Ms. Kagan
avoided the question by simply saying, ``That would be a dumb law.''
Madison had something different to say:
[[Page S6719]]
Ambition must be made to counteract ambition.
He is talking about us.
If men were angels, no government would be necessary. If
angels were to govern men, neither external nor internal
controls on government would be necessary. In framing a
government which is to be administered by men over men, the
great difficulty lies in this: You must first enable the
government to control the governed; and in the next place
oblige it to control itself.
We have had this vast expansion since the late 1940s in this country
in the commerce clause. It started with Wickard v. Filburn. A farmer
raising chickens was raising his own wheat. But the Government didn't
want him raising his own wheat because they had allotted limits during
the 1930s, the Great Depression--limits to what you could grow. So he
owns his own land, he has his own chickens, but the Supreme Court said:
You can't raise your own feed. You have to buy it from somebody.
So here we started with the Supreme Court ruling and moving in to
take away the freedom of an individual farmer to raise his own feed for
his own chickens for a greater good--supposedly to control the price
and availability of wheat.
What has happened to us since then? Look at the expansion of the
commerce clause and how it is moving power away from those who are
governed without their consent to a central government in Washington.
What does Ms. Kagan complain about during the hearing? That she thinks
the Supreme Court may be moving to reverse that--of which she adamantly
disagrees. When asked about the Seminole case and the Lopez case, she
worried that it moves us back to individual freedom and a more
restrictive commerce clause, a commerce clause that says our rights are
more important than those of the government.
That goes back to the basis that she doesn't believe we have natural
rights. The fundamental question of whether an individual, free in a
country, can walk on to the Supreme Court and disavow inalienable
rights and natural rights, that is a very dangerous concept because if
you don't believe in natural rights, you don't worry about taking them
from those who are governed. You don't worry about the Congress taking
them from those of the governed.
We are about to move to a point where we are going to put somebody in
a lifetime position on the U.S. Supreme Court who believes in foreign
law utilization to interpret the issues before it; who believes that
precedent trumps original intent of the Founders--in other words, the
arrogance is we are much smarter than they were, our wisdom is much
better, we are more modern, therefore things have changed, therefore we
have to ignore what they have said; that the commerce clause is
boundless; even if Congress passes stupid laws, they have the right to
do it and there is no obligation on the Court to look at the
Constitution and the documents behind it and what our Founding Fathers
had to say about the authority and what they intended and meant as they
wrote that clause into the Constitution.
Then, finally, one last point. She does not believe in the individual
natural right that you have as a person to defend yourself. She
wouldn't embrace that--which implies, very rightly so, that the second
amendment, even though we now have precedent, is at risk under Elena
Kagan as a Supreme Court Justice.
So, summing up, we are going to put somebody on the Court that I see
will further the problems we have versus starting to reembrace the
principles that made this country great. Are we going to embrace what
has gotten us into trouble? Are we going to embrace the $13.34 trillion
worth of debt growing at $1.4 trillion to $1.6 trillion today, that is
stealing the opportunity of the future? We are. We are going to put her
on there, and her wisdom and her vision is very different from our
Founders, our Constitution, and our natural rights.
This will be a huge mistake for this country if we want to solve the
problems in front of us. As I said, I don't expect anybody to change
their vote on the basis of my viewpoint. I will congratulate her for
being more honest and open on her testimony than others would because
normally we would not find out these things about judges.
With a worried heart, I yield the floor.
=========================== NOTE ===========================
On page S6719, August 4, 2010, the Record reads: With the word
`hark,' I yield the floor.
The online Record has been corrected to read: With a worried
heart, I yield the floor.
========================= END NOTE =========================
The PRESIDING OFFICER. The Senator from Georgia.
Mr. ISAKSON. Mr. President, I am always reluctant to find out that I
am following the Senator from Oklahoma on the floor of the Senate. He
is always prepared and always eloquent. I commend the Senator on his
speech.
But I want to commend him on his questioning in the hearing because
he allowed us to gain, and Ms. Kagan to express, important points,
important opinions, important judgments, and important statements for
everybody in this body to make up their minds. That is really what this
Senate is all about, and it is Senators like the Senator from Oklahoma
who help us all to do our job, and I commend him very much for his
work.
I also commend him for covering so many facts. My speech will be very
brief. I announced about 4 weeks ago that I would not vote for the
confirmation of Ms. Elena Kagan and expressed at that time the reasons.
But I wanted to memorialize that on the Senate floor because it is a
serious responsibility that we have to advise and consent on the
nomination of the President of the United States.
In response to that, the advice and consent should always be
thoughtful and should always be thorough, and mine is generally based
entirely on the Constitution when it comes to the Supreme Court and the
appointments the Presidents of the United States make because I am well
aware my position, the President's position, and the position of all of
us in this was a creation of those of our Founding Fathers who wrote
the Constitution that created the government, that is the United States
of America and the three branches of that government that will govern
us as a nation: the executive, the legislative, and the judicial.
Executive, as in the President; legislative, as in us; and the
judicial, as the jury--the jury not of who is right and wrong but is
the Constitution right, is the law right that we passed in relation to
the Constitution that created us.
Two things in Ms. Kagan's past concern me greatly in terms of the
direction she would go as a Justice on the U.S. Supreme Court. One is
the Solomon rule application when she was dean of the Harvard Law
School.
When I helped write, along with a lot of other Members in this body,
No Child Left Behind, we made sure we covered this issue of military
access on campuses of secondary schools and postsecondary schools.
The Solomon Amendment is a simple amendment that says: If you accept
Federal funds as a public institution or as a private institution, in
terms of Harvard through research or funds such as that, that U.S.
military representatives will have access to the campus.
Ms. Kagan made the conscious decision as dean of the law school that
that access would not be available at Harvard and, even after direction
otherwise, continued in that position until she eventually withdrew.
Well, if someone is going to the Supreme Court of the United States of
America to be a judge of our Constitution and its application to our
legislative and judicial branches, you must remember the first
responsibility designated to this Congress and to this government is to
protect and defend the domestic tranquility of the people of the United
States of America and to constitute an army and a navy to do that.
You cannot draw on that army and navy if you cannot draw on the
people in your country. At a time today, a contemporary time such as
2010, where everyone who serves--everyone, not a one is conscripted,
every single one is a volunteer--the information about the
opportunities, the availability and the promise of a career in the
military or a period of service should not be denied anyone who goes to
an institution that receives funds from the United States of America
and from this Congress.
Secondly, you know there has been a lot of talk about the Citizens
United case, and there have been a lot of political arguments about the
Citizens United case. But it is a first amendment case. I do not think
anybody argues about that.
In listening to the testimony in the Judiciary Committee and reading
the record on the Citizens United case, it is obvious, in her
expression and her arguments before the Supreme Court, Ms.
[[Page S6720]]
Kagan felt that even though you had a first amendment, through either
printing or writing or video or audio, the government could restrict
political speech.
Well, the first amendment is the guarantee of free speech. To argue a
case that, notwithstanding the first amendment, political speech could
be run by the government and judged by the government and its timing
and its accessibility, to me, flies in the face of the very first
amendment, of the first 10 amendments that finally allowed us to pass a
Constitution and come together as a nation.
So there are a lot of other issues. The Senators who preceded me have
raised a lot of those issues. I commend Ms. Kagan, too, on her complete
congeniality and her complete candor before the committee. But in terms
of this Senator, in terms of my vote, in terms of my judgment, it is
the case and the opinions on the first amendment in Citizens United,
and the actions contrary to the Solomon Amendment, and military access
that, to me, deliver a temperament that I do not think is appropriate
of a Justice of the Supreme Court at this time.
I yield the floor.
The PRESIDING OFFICER. The Senator from Utah.
Mr. BENNETT. Mr. President, we are we here to discuss Solicitor
General Elena Kagan's qualifications for the Supreme Court. We have
heard a number of conversations from our colleagues who are themselves
lawyers, who have sat in on the Judiciary Committee, and who have gone
through the record with great detail.
As I have said before, I am unburdened with a legal education. I have
great respect for those who have been taught to think like that and
talk like that and who go into that kind of detail. But I view this
from a slightly different point of view, and I hope it is a commonsense
point of view. I would like to share it with my colleagues this
afternoon.
I go back, not to start with Ms. Kagan but to start with an incident
that occurred when we were discussing the possibility of John Roberts
going to the Supreme Court as the Chief Justice. In that period of
discussion, there was a particular case that was raised in the press
where John Roberts had issued a ruling that, according to the
newspapers and the reporters, was an egregious ruling.
Here are the facts of the case: There was a young woman riding the
Metro who ate a french fry, not a lot of french fries--just one french
fry. She had the misfortune--she was 12 years old--she had the
misfortune to do that in the presence of one of the security officers
of the Metro who arrested her for violating the publicly advertized
zero-tolerance, no-eating policy in a Washington Metro station.
She was not just detained, she was arrested, searched, handcuffed,
driven to police headquarters, booked, and fingerprinted. Three hours
later, her mother showed up at the police station and she was released
to her mother. The mother sued, alleging that her daughter was treated
improperly, that an adult would have only received a citation, and that
this was a terrible thing that had been done to her.
The law says children who violate this policy have to be detained
until their parents can arrive. Well Justice Roberts, the case finally
came to him on the circuit court, ruled that the Metro police had acted
properly. In an attempt to derail his confirmation to Chief Justice,
there was a dust-up in the newspapers and the media: This is a man, we
want to put him as Chief Justice of the United States, and he will
tolerate this kind of treatment of a young woman who does nothing more
than eat a single french fry in a Metro station? Is that the kind of
man we want on the Court?
I remember those kinds of editorials and denunciations that were made
of Mr. Roberts. Then, the facts came out as they got into what
happened. What I have said are, indeed, the facts. But this is what
Justice Roberts said when he handed down his opinion. He said: No one
is very happy about the events that led to this litigation. He said it
was a stupid law. He did not say it in those kind of terms. He said it
in appropriate legal terms. But basically the burden of what he said
was it was a stupid law.
But he said: The question before us is not whether these policies
were a bad idea but whether they violated the fourth and fifth
amendments of the Constitution. And, as Judge Roberts concluded, they
did not.
Interestingly, the city council, in response to this case, had
changed the law. So he made it clear: I do not agree with this law. I
think it is a bad law, but that is not my responsibility. My
responsibility is to determine whether it violates the Constitution.
This is reminiscent of Justice Potter Stewart's dissent in Griswold
v. Connecticut. He said: We are not asked in this case to say whether
we think this law is unwise or even asinine. We are asked to hold that
it violates the U.S. Constitution, and that I cannot do.
What does that have to do with Elena Kagan? She was faced with a
similar situation. She was not a judge. But she was in a position of
authority, and she was faced with a law that she decided was a bad law.
This was the Solomon Amendment, having to do with the question of
military recruiters on college campuses. She was in a position as the
dean of the law school at Harvard, to prevent military recruiters from
coming on campus.
The Solomon Amendment basically said: You cannot do that, Dean Kagan.
You may disagree with the military's policy with respect to don't ask,
don't tell, and you can do that. But you cannot accept federal funds
and prevent military recruiters from coming on campus. You can even
express your disagreement in a legal fashion, and she did. She openly
opposed it. She joined other faculty to sign an amicus brief in support
of a constitutional challenge of the Solomon Amendment.
I do not object to that. She has every right, as an American citizen,
to challenge something she thinks is inappropriate in the law. But she
does not have the right to flout the law, and to say: No, we choose not
do it. When she became the dean at Harvard, she did that.
She refused to allow the recruiters to come on at the Harvard Law
School. She says she did not. She says: The military had full access at
all times. By the way, she was wrong on the law, as far as the Solomon
Amendment is concerned, because the Supreme Court decided unanimously
that the Solomon amendment was constitutional and that the military had
the right to equal access to students at institutions receiving Federal
funding.
So she should have waited for the Supreme Court to rule, but she did
not. She said: I will comply with the law. This is what the recruiters
said. She says they had full access. All right. If they had full
access, I would think they would confirm that they had full access. But
this is what they had to say. The Army's report from Spring 2005 said:
The Army was stonewalled at Harvard. Phone calls and e-mails went
unanswered and the standard response was: We are waiting to hear from
our higher authority.
There is a Defense Department memo stating: Denying access to the
Career Service 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 chief of recruiting for the Air Force JAG Corps was repeatedly
blocked from participating in Harvard's 2005 recruiting session. He
reported: Harvard is playing games and will not give us an on-campus
interviewing date.
Three different recruiters give a different view of what was done
with respect to Harvard. Yet General Kagan says: No. No. They all had
full access at all times. If they did, then they are lying. If they did
not, then she is giving us false information. She denies the entire
incident.
I think she should have stated her opposition in the Judiciary
hearings. The proper approach should be to say: I hate the Solomon
Amendment. I think it is the wrong thing to do. But just as Judge
Roberts upheld the action with respect to a 12-year-old girl that was
clearly not appropriate, because it was the law, I have a
responsibility, as a lawyer, and lawyers are officers of the court, I
have a responsibility as a lawyer at Harvard, even as I am voicing my
objection, to say: The Solomon Amendment is in place, and I am going to
respect it.
She did not respect it. She denies that she did not respect it, in
the face of testimony to the contrary from at
[[Page S6721]]
least three different sources who were directly involved in the case. I
do not find that the kind of behavior, regardless of my ideological
difference with her, the kind I think a Justice of the Supreme Court
should have.
She has had much the same attitude with respect to the second
amendment. She has taken a position of being above the law. She refused
to declare support for the second amendment and when she was questioned
about it, she simply dismisses it as ``settled law.'' Going back to the
Solomon Amendment, wasn't that settled law? When she had an opportunity
to act against it, she took that opportunity, feeling correctly that
she would not be disciplined for it at Harvard. But now I do not think
she can appropriately say she should not be questioned about it as she
is being proposed for the Supreme Court.
When clerking for Justice Thurgood Marshall in 1987, Kagan was faced
with a challenge to the District of Columbia gun ban. With respect to a
plaintiff's contention with respect to the District of Columbia's
firearms status--as he said, the District of Columbia violated his
constitutional right to keep and bear arms--She wrote: I am not
sympathetic, and she recommended that the Court not even consider the
case. The Court recently considered the case and has ruled otherwise in
the Heller decision.
So she is going to go to the Court--I assume she will be confirmed--
with at least two circumstances where she has taken firm positions in
opposition to the Court she intends to join. In one case it was a
unanimous decision that overturned her; it was not a 5-to-4 decision.
My concern about her is that she has never shown any inclination
toward impartiality. I do not mind people of strong opinions. This
Chamber is filled with them. I do not mind judges who have strong
opinions as long as they do not let those strong opinions get in the
way of what the law says. I am afraid in her case she is one who will
let her strong opinions get in the way of what the law says. For that
reason, I intend to vote against her nomination.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. DeMINT. Mr. President, I rise in opposition to the confirmation
of Ms. Kagan to the Supreme Court, and I would like to put this
opposition in context with what is going on all around the country.
All of us know, and we have seen on the news--and many of us have
seen in person--that people are upset with what is happening in
Washington. They are angry. They are fearful. They are frustrated at
all the spending, the borrowing, the debt, the government takeovers. I
keep hearing from people: What can we do? How can we stop it? Why is it
happening?
That is a question we need to keep asking here: Why is it happening?
Why has this country, this Congress, and many Congresses before spent
this country to the edge of bankruptcy--and continue to spend week
after week? Even though the President and the majority are talking
every week about the unsustainable debt, almost every week we are
adding to that debt, adding new programs. It makes no sense.
Our Founders believed it very important that every Member of
Congress--the House and the Senate--the President, the Supreme Court,
and the military officers all take an oath of office to protect and
defend the Constitution. That may seem perfunctory, just something we
do as a part of history. But that was not its intent because the
Constitution is a document that limits what the Federal Government can
do. If anyone reads it seriously, it is pretty clear its primary
purpose is to limit what the Federal Government can do. It specifies a
few things, such as protecting our Nation, making sure there is
justice, making sure we have the rule of law and the enforcement of
those laws across all of our States.
But it says a lot about what we cannot do. The whole Bill of Rights
says much about what the government cannot do to take our freedoms. The
10th amendment itself says whatever is not specified in the
Constitution is left to the States and the people.
Even though all of us take that oath of office, it seems to me, after
being here a number of years, that just about everyone here sets aside
that Bible when they put their hands down and completely forgets they
have just taken an oath to protect and defend a constitution that
limits what we can do.
Last year, when we passed this health care bill, Obamacare, a
reporter asked Speaker Nancy Pelosi where in the Constitution did she
find the authority to require people to buy a government-approved
health insurance policy. All she could say is, ``Are you serious?'' In
fact, if you talk about a limited constitutional government, as I often
do in the Senate, you are considered a radical, even though all of us
take that oath of office.
What we have turned into here--and the President has used this phrase
a lot--is a ``yes, we can'' Congress. It does not matter what it is,
what problem comes up all across the country, we can do it, we can fix
it. Government has a solution to almost anything because we do not pay
any attention to the Constitution.
The Constitution is a constitution of no, of what we cannot do. That
is to protect us and to avoid where we are today, which is approaching
a $14 trillion debt which is about to destroy our whole country.
Think about this: In the world's great bastion of freedom that we
call America, our Federal Government owns the largest auto companies.
It owns the largest insurance company. It owns the largest mortgage
companies. It controls our education system. It just took over our
health care system. It controls the whole energy sector and our
transportation sector. The rules and regulations and taxes that we put
on businesses pretty much means mostly it controls all the business
activity in our country.
When Congressman Pete Stark was asked last week--in an interview we
have seen all over the Internet--is there anything that the Federal
Government cannot do, he said no because he had forgotten the
constitutional oath of office.
What is the Court's rule, as we think about Ms. Kagan, the Supreme
Court, the confirmation process? What is the role of the Court? The
intent is pretty clear that it is to watch over Congress, the executive
branch, to make sure we do not get outside the bounds of the
Constitution. If we do, the Court is supposed to say: No, you can't;
that is unconstitutional. But the Court, over the years, has pretty
much thrown that responsibility out the window.
Back during FDR's days, in their interpretation of the commerce
clause, it had essentially given Congress and the White House unlimited
ability to do almost anything that comes up, any whim that we have.
That is how we ended up with over $13 trillion in debt. I know this
overactive government is really important. This idea of a limited
government is very important.
When Ms. Kagan was in my office and I asked: Does the Constitution
limit us from doing anything, she really could not come up with a good
answer. It is pretty similar to her hearings, when Senator Tom Coburn
asked her: If the Congress passed a law, and the President signed it,
that every American had to eat their fruits and vegetables every day,
would that be constitutional? And she said: It would be a dumb law. But
she would not say that is unconstitutional.
Friends, if this government can tell us what we have to eat, it can
tell us anything. We cannot claim to have any freedoms if this
government can tell us what we have to eat. It is essentially the same
thing as telling us we have to buy a government-approved health
insurance policy. We cannot say no. But the Constitution is intended to
make sure we do.
Ms. Kagan talked a lot about precedents, which are just previous
court rulings, not much about the Constitution being our standard. The
problem with that is a precedent is a lot like what we used to call the
gossip game. Some people call it the telephone game, where you have a
bunch of people sitting around a table, and the person at the head of
the table whispers a phrase to the person next to them. They whisper it
to the person next to them, and it goes all around the room. The whole
funny part of the game is, by the time it gets back to the person who
started it, you cannot even recognize the phrase. It has nothing to do
with what was originally said.
That is exactly how precedent works. Once you throw the standard out,
then
[[Page S6722]]
the whole idea of a constitutional standard is out the window, if we
have judges today who are making decisions by picking and choosing the
precedent that agrees with their opinion rather than basing their
decisions on true constitutional standards.
I oppose Ms. Kagan's nomination because she, in my opinion, does not
believe in constitutional limited government. She does not believe in
the original intent of the Constitution but more of President Obama's
belief of a more living Constitution. As President Obama said before he
was elected, he sees the Constitution as a document of negative
liberties because it tells the government what it cannot do. But it
does not tell us what we have to do.
It was never supposed to tell us what we have to do. But the
progressives in power in Washington and many of our judges believe they
need, through court rulings, to change that Constitution. What has
resulted in that is the government controlling more and more of our
lives, spending and borrowing money we do not have, and bringing our
country to the brink of economic disaster.
We cannot afford more ``yes, we can'' judges in our country. We can
cannot afford more ``yes, we can'' Senators or Congressmen. And we
certainly cannot afford another ``yes, we can'' President. The
decisions that have been made about our economy over the last couple of
years have brought our economy to its knees. This is no longer
something we can blame on President Bush. In fact, the Democrats have
been in control of policymaking, economic policy spending for 4 years
now. This is not Bush's recession. This is the result of Democratic
economic policies.
This nomination will continue our move in the wrong direction because
it will put another person on the Court who does not see their role as
limiting what we can do in Congress, and this Congress desperately
needs a Supreme Court that tells Congress no when we step outside the
bounds of the Constitution.
Mr. President, I believe America is looking at Congress closer than
they ever have before. They expect us to make the hard decisions, to
stop the spending, to stop the waste, to stop the borrowing, to stop
the debt, to stop the government takeovers, and to stop our courts from
taking our freedoms away. That is why I am opposing Ms. Kagan to be a
Supreme Court Justice, and I encourage my colleagues to consider their
vote and to vote no.
Mr. President, I yield back.
The PRESIDING OFFICER. The Senator from Mississippi.
Mr. WICKER. Mr. President, we are not in a quorum call at this time.
I am told there is a brief pause. I ask unanimous consent that I be
allowed to speak as in morning business for 5 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.