[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.