[Congressional Record Volume 156, Number 118 (Thursday, August 5, 2010)]
[Senate]
[Pages S6756-S6762]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       NOMINATION OF ELENA KAGAN

  Mr. JOHANNS. Madam President, a Senator has an enormous duty when it 
comes to evaluating a Supreme Court nominee. The duty demands that 
Senators examine whether the person nominated to the highest Court in 
the land will uphold and defend the principles contained in the 
Constitution, refrain from judicial activism, and respect the rule of 
law.
  Some have characterized this duty as one of the most important and 
far-reaching decisions that a Senator will make, and it is one of the 
most important decisions in their entire time in the Senate.
  As the nomination process for Ms. Kagan began, I went into it with an 
open mind and a steadfast resolve to evaluate the nominee's 
qualifications without looking through a partisan lens. In fact, having 
gone through the confirmation process myself before being sworn in as 
Secretary of Agriculture, I know what an important process this is.
  Senators have a strong duty to take it seriously. Considering Supreme 
Court judgeships are lifetime appointments, these nominations require 
even closer scrutiny. Thus, Senators must carefully review any Supreme 
Court nominee's record and their judicial philosophy.
  After this careful review and closely monitoring the hearings before 
the Judiciary Committee, I came to the conclusion that I could not 
support this nomination.
  The Court is not a place to create laws, and I was not convinced that 
Ms. Kagan understands this fundamental premise. Additionally, her long 
career as a political adviser and academic insufficiently prepares her 
for a lifetime appointment to the country's highest Court.
  For example, prior to her position as Solicitor General, Ms. Kagan 
had never taken a case to trial. I find that remarkable. Since her time 
as Solicitor General, Ms. Kagan has only argued six cases before the 
Supreme Court.
  Beyond that lack of experience, there are several other areas that 
concern me about this nomination. Ms. Kagan's view of the second 
amendment is disturbing to me. As a law clerk for U.S. Supreme Court 
Justice Thurgood Marshall, she wrote that she was ``not sympathetic''--
``not sympathetic''--to the legal assertion that the DC gun ban 
violated citizens' constitutional right to bear arms.
  Probably the most recent glimpse into Ms. Kagan's view of the second 
amendment is her failure to file a brief on behalf of the petitioner in 
the McDonald case regarding Chicago gun bans. The Supreme Court had 
already been clear on the DC gun ban, and Chicago's law clearly 
impacted a variety of Federal laws and programs.
  Yet, as Solicitor General, she chose to sit quietly, tacitly casting 
aside a very important constitutional protection. Her not filing 
demonstrated the government's lack of interest or concern in protecting 
this important constitutional right.
  Ms. Kagan's lack of action is viewed by many as a bias against the 
second amendment, as if she were picking and choosing which 
constitutional provisions she liked. Judges cannot selectively 
disregard the Constitution when it is convenient or in line with their 
point of view. So Ms. Kagan's record in this area is enormously 
troubling for someone who wants to sit on the Supreme Court.
  Another very serious concern is her actions as an adviser to 
President Clinton were instrumental in keeping partial-birth abortion 
legal in the 1990s. During her time in the White House, the American 
College of Obstetricians

[[Page S6757]]

and Gynecologists privately briefed Ms. Kagan on the partial-birth 
abortion procedure. Their opinion was clear and lacing equivocation.
  According to a memo Ms. Kagan wrote, the medical group said:

       In the vast majority of cases, selection of the partial 
     birth procedure is not necessary to avert serious adverse 
     consequences to a woman's health. There just aren't many 
     circumstances where use of the partial-birth abortion is the 
     least risky, let alone the necessary approach.

  The group's public draft statement went on to say:

       A select panel convened by ACOG could identify no 
     circumstances under which the partial birth procedure would 
     be the only option to save the life or preserve the health of 
     the woman.

  Upon hearing this news, Kagan wrote in a memo that the statement 
would be ``a disaster.'' Then she edited the document and advised the 
medical group to include a much different sentence claiming partial-
birth abortion ``may be the best or most appropriate procedure in a 
particular circumstance to save the life or preserve the health of a 
woman.''
  The original sentence and Ms. Kagan's sentence are vastly different, 
almost complete opposites. Yet Ms. Kagan's language was copied verbatim 
into the medical organization's final statement.
  While Ms. Kagan has no medical credentials whatsoever, she bullied 
her personal views into the opinion of these medical professionals.
  Unfortunately, this assumed expert medical opinion was relied upon 
heavily in subsequent court cases, including the one that struck down 
Nebraska's partial-birth abortion ban--my State. U.S. District Court 
Judge Richard Kopf devoted more than 15 pages of his opinion to the 
policy statement that Kagan wrote.
  Judge Kopf believed the statement was entitled to judicial deference 
because, ``Before and during the task force meeting, neither ACOG nor 
the task force members conversed with other individuals or 
organizations,'' he wrote in his opinion.
  It is beyond belief and beyond unfortunate that no one was aware of 
Ms. Kagan's extensive involvement in drafting the supposedly 
independent policy statement; otherwise, this horrific procedure may 
have been banned 10 years earlier.
  This type of extreme political policy engineering should give us all 
great pause and solid reason to question whether Ms. Kagan could serve 
as a truly neutral umpire on the bench.
  My concerns do not stop there. My concerns extend further to her role 
as dean of the Harvard Law School. Ms. Kagan was confronted with the 
Solomon amendment, a Federal law that requires schools receiving 
Federal funds to give equal access to military recruiters. It was very 
straightforward. Yet she chose to ignore this law and denied military 
access to Harvard's on-campus recruiting program.
  Even the Supreme Court unanimously ruled against Ms. Kagan in this 
matter. This is especially troubling that Ms. Kagan would openly defy 
Federal law, especially in a time of war.
  Her judgment and her reading of the law was fundamentally flawed, and 
every one of her potential colleagues agreed she was wrong. That is not 
a good sign for things to come.
  For these reasons and others, I do not have confidence that Ms. Kagan 
will be able to put aside her personal or political agenda before 
sitting on the bench.
  As the National Right to Life Committee noted:

       We anticipate that Ms. Kagan often will treat the U.S. 
     Constitution not as a body of basic law that truly constrains 
     both legislators and judges, but rather as a cookbook in 
     which may be found legal recipes that will allow the 
     imposition of the policies that Ms. Kagan deems to be 
     justified or advisable, or that are so regarded by whatever 
     groups she sees as the enlightened elites on a given subject.

  A lifetime appointment to the highest Court in the land is far too 
important a decision to have so many concerns. When the Senate votes on 
the nomination of Ms. Kagan, I will vote no. Doing otherwise would 
ignore the integrity of our Constitution and it would not be in the 
best interest of this great country.
  Madam President, I yield the floor and suggest the absence of a 
quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. JOHANNS. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. JOHANNS. Madam President, I ask unanimous consent that the quorum 
calls during today's morning business be charged equally to both sides.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. JOHANNS. I yield the floor and suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. ROBERTS. I ask unanimous consent that the quorum call be 
dispensed with.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. ROBERTS. I ask unanimous consent to speak up to 15 minutes.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. ROBERTS. Madam President, after careful consideration and 
assessment of the nominee's record and expressed views, I rise today to 
express my opposition to Solicitor General Elena Kagan's nomination to 
the U.S. Supreme Court.
  In the nomination process, a telling and inciteful statement by 
another Senator is most applicable and pertinent. During the Senate's 
debate on the nomination of Chief Justice John Roberts, then Senator 
Barack Obama stated:

       . . . that while adherence to legal precedent and rules of 
     statutory or constitutional construction will dispose of 95 
     percent of the cases that come before the court, so that both 
     a Scalia or Ginsburg will arrive at the same place most of 
     the time on those 95 percent of the cases--what matters on 
     the Supreme Court is those 5 percent of cases that are truly 
     difficult.
       In those cases, adherence to precedent and rules will only 
     get you through the 25th mile of the marathon.
       That last mile can only be determined on the basis of 1) 
     one's deepest values, 2) one's core concerns, 3) one's 
     broader perspectives on how the world works, and 4) the depth 
     and breadth of one's empathy.

  I respectfully disagree with this rationale and find it troubling. 
Our judges must decide all cases in adherence to legal precedent and 
rules of statutory or constitutional construction.
  The role of a judge is not to rule based on his or her own personal 
judgments or comply with one's empathy, how they think the world really 
works, concerns and values--deep or shallow--all subject to personal 
views, ideology and the winds of time and political change. No, the 
role of a judge should adhere to the laws as they are written.
  An appointment to serve on the Supreme Court of the United States is 
a lifetime term. It was crafted by our Founders to protect and insulate 
the highest Court of our land from personal concern, empathy, 
individual values or how one thinks the world really works at some 
point of time, not to mention the threat of any influence of politics.
  Nominations to the highest bench should therefore not be considered 
lightly. It is one of the most important votes a Senator has the 
privilege to cast.
  And I would submit compared to the standard of legal precedent, 
statutory rules, constitutional construction, again personal values, 
concerns, how the world allegedly works and one's personal criteria of 
empathy represents a lesser standard--sort of a standard lite.
  The qualifications of the nominee must be carefully considered. As 
U.S. Senators, we have an obligation to ensure that our courts are 
filled with qualified, impartial judges.
  In light of that I must ask--who is Elena Kagan?
  In reviewing Ms. Kagan's qualifications, I find her lack of judicial 
experience striking.
  While others note that serving as a judge is not a requirement for a 
Supreme Court nomination, it has also been noted that every nominee in 
nearly 40 years to the Supreme Court has had extensive judicial 
experience, whether from the bench or as a litigator in the courtroom.

[[Page S6758]]

  Ms. Kagan's litigation experience is limited, with the majority of 
her arguments being made during her brief tenure as the U.S. Solicitor 
General.
  Given her obvious lack of experience in the court room, one must ask 
if this is the best position to receive on-the-job-training? Will the 
``craft'' of judging come innately to Ms. Kagan or is it a skill honed 
by years of practice and judicial experience?
  Some have argued in defense of such a thin judicial resume that 
nominees can bring a ``real world''--- whatever that is--- perspective 
to the bench. Nonetheless, much of the nominee's experience lies in the 
hallowed, Ivy League, halls of academia, indeed a world of its own.
  While I do not question the merits of a strong university background, 
I question how that makes one more in tune with the ``real world.''
  Additionally, the nominee's resume includes her positions as special 
counsel and policy advisor in the Clinton administration--a role in 
which she truly relished her job. During her tenure she advocated for 
policies involving the second amendment.
  In response to a Supreme Court decision which struck down the Brady 
Act's requirement of background checks before gun sales, documents from 
the nominee's tenure suggested that the administration explore how to 
maneuver around the Court's decision by executive action.
  The advice here goes beyond legal counsel and indicates a clear 
interest in achieving a policy goal by going around the Supreme Court's 
decision, while forgoing the jurisdiction of Congress.
  When determining how Ms. Kagan may approach a seat on the Court, her 
position as a policy adviser is one of the few records available to 
review.
  Does this type of maneuvering indicate how Ms. Kagan would use her 
position as a Supreme Court Justice to justify an agenda where a policy 
goal is the intended outcome?
  I must also say that as dean of Harvard Law School, Ms. Kagan's 
effort to ban military recruiters from the main placement office on 
campus is deeply troubling.
  The justification for violating the Solomon Amendment--named after 
Congressman Gerald Solomon--was to protest the military's don't ask, 
don't tell policy. This action was also consistent with her own 
expressed views.
  It must be noted, blocking access to military recruiters is counter 
to Federal law.
  Only when threatened with the loss of Federal funding, did Harvard 
comply. Ms. Kagan then used a stayed decision by an appellate court, 
which determined the Solomon Amendment was unconstitutional, to 
reinstitute the ban. Shortly thereafter, the Supreme Court overturned 
the appellate court's decision by an 8-0 ruling.
  According to Chief Justice John Roberts, ``A military recruiter's 
mere presence on campus does not violate a law school's right to 
associate, regardless of how repugnant the law school considers the 
recruiter's message.''
  I must say, I don't know of any recruiter who would stand up and 
debate students in the circumstance of a policy judgment--more to the 
point, in regard to a policy that is as controversial as don't ask, 
don't tell. They are there to recruit individual students or to answer 
questions they may have.
  U.S. servicemembers deserve our unfettered support, as they face 
unimaginable danger on the front line in defense of our Nation. Their 
willingness to sacrifice their time away from home and loved ones while 
serving in harsh and dangerous places under difficult circumstances 
should be honored.
  It seems to me we dishonor their sacrifices and service by hollow 
justifications of policy agendas. These efforts are a clear indication 
to me, as well as my fellow Kansans, that Ms. Kagan's agenda is at odds 
with her role as a dean and a future Supreme Court Justice, and is 
clearly out of step with the average American no matter how deep her 
concern, empathy, values or the real world she believed she could 
change.
  It is clear from her time as a policy adviser during the Clinton 
administration--a job she truly relished--that she supports methods of 
enacting policy changes through administrative means and around the 
jurisdiction of the legislative branch.
  This type of disregard for the jurisdiction of the elected branch of 
government is concerning.
  Ms. Kagan's zeal and enthusiasm as a political advisor and an 
academic does not qualify her for a lifetime appointment to our 
Nation's highest Court.
  Not only does she lack experience on the bench, but her record 
clearly demonstrates a propensity towards pursuing an activist agenda.
  In her own words, Ms. Kagan confessed difficulty in ``taking off the 
advocate's hat [to] put on the judge's hat.'' This admission is at best 
worrisome; at worst, a clear indication of her intent to legislate from 
the bench.
  We have a constitutional obligation to ensure that our judges are 
impartial and faithful to the law. During Chief Justice John Roberts' 
confirmation hearing, he noted that ``Judges and Justices are servants 
of the law, not the other way around. Judges are like umpires. Umpires 
don't make the rules, they apply them. The role of an umpire and judge 
is critical. They make sure everybody plays by the rules, but it is a 
limited role. Nobody ever went to a ball game to see the umpire.'' They 
may go to criticize the umpire, but they do not go to see him.
  I am not convinced that Ms. Kagan will limit herself to merely 
applying the rules.
  Given the limited judicial background and a lack of forthrightness in 
queries as to her judicial philosophy during the nomination hearings, I 
am fearful that this nomination will serve as another tool in what we 
have witnessed in further encroachment of government into the everyday 
lives of the American people.
  Kansans have made clear to me that they do not want activist judges 
on the Court and they do not want additional government intrusion into 
their daily lives and pocketbooks, especially coming from the bench.
  Unfortunately, I think appointing Ms. Kagan to the Court will result 
in more of both. Therefore, I must oppose her nomination.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from North Carolina.
  Mr. BURR. The American people are worried about the direction of our 
country, and I absolutely share their concern. The public has witnessed 
Washington's growing disregard for the Constitution and its limits on 
government power. Too many of those powers see no limits to their 
authority, and that, to me, is frightening.
  The size of government has exploded, spending is out of control, the 
national debt is soaring, and Congress has passed thousands of pages of 
legislation with little concern for the effects on the rights of 
everyday Americans and with no thought at all to the debt we saddle our 
children and our grandchildren with.
  The Founding Fathers knew the dangers of expanding government power. 
The Founders knew what Barry Goldwater knew when he said: ``A 
government strong enough to give you what you want is strong enough to 
take it away.''
  They established the judiciary branch in order to protect against an 
overly aggressive government. They envisioned it as a neutral arbiter 
of disputes based on the written law and as a check on government power 
grabs beyond the intended authority.
  This is why the judiciary is so important and why the lifetime 
appointment of a Justice to the Supreme Court is one of the most 
serious actions any of us will consider. We must have judges who are 
committed to the job of holding us to the words of the Constitution and 
laws that are written.
  We, in Congress, have proven again and again that we will not limit 
ourselves, and the executive branch continues to do the same. The 
American people knew this, and that is why they are concerned about 
President Obama's nomination of Elena Kagan to the U.S. Supreme Court. 
I am concerned that Ms. Kagan does not seem to recognize the limits the 
Constitution places on the Federal Government and does not understand 
or seem to understand the role of a Supreme Court Justice.
  Ms. Kagan, of course, does not have a judicial record for us to base 
our decisions on. I do not think that alone should disqualify her, but 
it does make it difficult to discern how she will perform as a judge. 
Ms. Kagan has spent most of her career in political roles and

[[Page S6759]]

in the academic world. I do not think it is appropriate to cast my vote 
based only on her politics, but I do think her record shows she has 
been unable to separate her politics from her legal advice, even in her 
purely legal role in clerking for the Supreme Court. This is incredibly 
problematic.
  I am concerned Ms. Kagan will only further the rapid expansion of the 
Federal Government, that her actions, particularly on issues such as 
military recruiting, second amendment rights, and abortion, show that 
her first allegiance is to her own political views. Her record and her 
testimony demonstrate that she is likely to limit the powers of the 
Federal Government only based on her personal political views and not 
based on the enumerated powers of the Constitution.
  Our Founding Fathers established a Federal Government of limited 
power. They enumerated those powers and intended the list to be 
exclusive. In the 10th amendment, they specifically state: Powers not 
expressly granted to the Federal Government in the Constitution are 
reserved for the States. Everything not specifically named in the list 
of congressional powers was intended to be beyond Federal Government 
reach.
  Unfortunately, legal progressives have sought to stretch that list 
far beyond its breaking point. Often they have chosen as their tool the 
commerce clause, which gives Congress the authority to regulate 
commerce amongst the States. Over the years, Congress has relied on the 
commerce clause to pass laws well beyond the scope of what our Founding 
Fathers intended, laws regulating matters totally unrelated to 
interstate commerce, such as how much wheat a farmer can grow on his 
own land for his own use or where a person might possess a firearm.
  The Framers intended the limited nature of Congress's power as a 
method to protect the freedom of individual Americans to go about their 
lives without undue interference from government, but the limits the 
Constitution established matter only if our judges are willing to 
enforce them.
  I am sad to say I do not believe Ms. Kagan will enforce those 
limitations. During her hearings, Senator Coburn asked Ms. Kagan a very 
basic question, but it is an important question that deserves a direct 
and straightforward answer. Senator Coburn asked this: ``If I wanted to 
sponsor a bill and it said, Americans, you have to eat three vegetables 
and three fruits every day, and I got it through Congress, and it is 
now the law of the land, does that violate the commerce clause?''
  While Ms. Kagan acknowledged this would be a dumb law, she repeatedly 
stated the Court should give great deference to the will of Congress. 
She said: ``We can come up with sort of, you know, just ridiculous 
sounding laws and the principal protector against bad laws is the 
political branches themselves.''
  I can certainly see why the American people are afraid, if the task 
of protecting against bad laws is left solely up to the political 
branch. Ms. Kagan had extreme difficulty in recognizing any limit at 
all on Federal powers. She simply refused to acknowledge that the 
Federal Government cannot pass a law telling American citizens what to 
eat.
  Of course, I can see why the Obama administration supports her. The 
recently passed health care legislation is an exercise of unprecedented 
government power. The new health care law mandates--mandates--that 
Americans purchase health insurance.
  By forcing Americans to purchase government-regulated insurance and 
by threatening them with IRS tax sanctions, the Obama administration is 
forcing its way into American lives in a way this country has never 
witnessed. Never before has the Federal Government forced Americans, 
under threat, to purchase a particular good or service.
  I strongly disagree and most Americans disagree with this expansive 
view of the Federal Government's powers. We need Justices on the 
Supreme Court who are ready and willing to stand and defend the 
Constitution. We need Justices who recognize that there are, in fact, 
limits to the Federal Government's powers.
  Not only must Supreme Court Justices recognize and enforce the 
limitations of the Federal Government, but they cannot owe any 
allegiance to advancing the political agendas of the President who 
appointed them. I do not believe Ms. Kagan fully appreciates this 
critical point. To the contrary, I believe that, if confirmed, she will 
be tied more to her own political agenda than to the Constitution of 
this great country.
  Ms. Kagan's record is truly disconcerting to me. Throughout her 
career, her record reveals that she put politics above the law. Such a 
philosophy has no place in the Supreme Court. I oppose Ms. Kagan not 
because of her political views, I oppose her because she has not 
demonstrated an ability to leave those political views at the 
courthouse door. As such, she fails to meet the minimum requirement for 
any judicial appointment: impartial fidelity to the written law.
  On military recruiting, Ms. Kagan has fought zealously to keep 
recruiters off our campuses during a time of war. As dean of Harvard 
Law School, she sent e-mails to the entire Harvard Law School community 
saying she abhors it, the military's don't ask, don't tell policy, and 
calling it a ``profound wrong,'' a ``moral injustice of the first 
order.''
  The Obama administration has defended her actions against military 
recruiters saying these claims were overblown because she ultimately 
continued the practice of her predecessor in allowing the military to 
recruit through the school's veterans organization, which was primarily 
a social organization with fewer than 20 members.
  Yet even this paltry action was only a way to continue to receive 
Federal funding for the school. A Federal law, known as the Solomon 
Amendment, denies Federal funding to any institution of higher 
education that has a policy or practice that either prohibits or, in 
effect, prevents the military from gaining access to the campus or 
access to students on campus for the purpose of military recruiting in 
a manner that is at least equal in quality and scope to the access to 
campus and to students that is provided by any other employer.
  Even then she explains that doing so caused great distress. Ms. Kagan 
did everything she could to fight the Solomon Amendment, even signing 
on to an amicus brief in the Supreme Court in the case of Rumsfeld v. 
FAIR, with about 40 other law professors opposing the amendment. The 
Supreme Court unanimously rejected their argument. Not one Justice 
found it convincing--not Souter, not Breyer, not Ginsburg, not Stevens.
  Ms. Kagan has demonstrated similarly poor judgment on the second 
amendment. When she was clerking for Supreme Court Justice Thurgood 
Marshall, she had the opportunity to consider Sandidge v. United 
States, a DC firearms case remarkably similar to the 2008 DC v. Heller 
case, in which the Court ultimately struck down the DC gun ban. In 
evaluating the case for Justice Marshall, she recommended that the 
Court not even consider the case.
  Ms. Kagan wrote that the petitioner's ``sole contention is that the 
District of Columbia's firearms statutes violate his constitutional 
right to `keep and bear arms,' '' and then said, ``I'm not 
sympathetic.'' That was her remark to Justice Thurgood Marshall.
  Ms. Kagan also worked on several anti-second amendment initiatives in 
the Clinton administration. She worked on the Clinton administration's 
response to the Supreme Court's 1997 decision striking down parts of 
the Brady handbill law. The Court there said that Congress could not 
command State and local chief law enforcement officers to conduct 
Federal background checks on handgun purchasers. She considered such 
proposals as outlawing the sale of handguns where a chief law 
enforcement officer was unavailable or unwilling to conduct a 
background check, and also suggested that President Clinton issue an 
Executive Order to do the same.
  She coauthored two policy memos advocating for events and gun control 
proposals, including legislation requiring background checks for all 
secondary market gun purchases, a ``gun tracing initiative,'' a new law 
holding adults liable for giving children easy access to guns, and a 
call for a new gun design ``that can be shot only by authorized 
adults.''
  She drafted an Executive Order restricting the importation of dozens 
of

[[Page S6760]]

semiautomatic rifles that had been considered ``sporting'' and 
importable under the 1994 assault weapons ban. One of her colleagues in 
the White House described the plan by saying, ``We are taking the law 
and bending it as far as we can to capture a whole new class of guns.''
  She also worked on an effort to allow background check information 
from lawful sales to be retained by law enforcement, and a member of 
her staff wrote, ``the longer we are able to keep records--even days, 
weeks--the more useful [it] will be as an overall law enforcement tool.
  This, of course, is exactly what the gunners don't want.'' 
``Gunners,'' a new word.
  As Solicitor General, Ms. Kagan notably declined to submit a brief in 
support of the petitioner in the McDonald case--proably the biggest 
second amendment case in decades.
  In working on the Volunteer Protection Act, Ms. Kagan expressed 
concern to the Department of Justice that ``Bad guy orgs'' like the NRA 
and the KKK might be included in a ``cumulative list'' of nonprofits 
whose volunteers would qualify for liability protection from lawsuits. 
To lump the NRA in with such a despicable organization is an insult to 
gun owners across America.
  On partial-birth abortion and on taxpayer-funded abortions, Ms. Kagan 
also has a history of far-left advocacy on abortion issues, skewing 
even her legal judgments based upon personal politics.
  When she was working for Justice Marshall, she urged him to vote to 
deny review of a lower court decision holding that prison inmates had a 
constitutional right to taxpayer-funded elective abortions, and even 
though she admitted that parts of the decision were ``ludicrous'' and 
that the facts showed no constitutional violations, she called it 
``well-intentioned.'' She insisted the Court should deny review, and 
let this decision stand, because she was concerned that the Court might 
``create some very bad law on abortion.''
  Memos and handwritten notes during her time in the Clinton White 
House demonstrate that she pushed even the Clinton administration 
further to the left on the issue. President Clinton at the time had 
expressed a desire to ban all elective partial-birth abortions, to 
which, as she wrote in a handwritten note to the White House Counsel at 
the time, ``This is a problem. . . .'' She was the lead person working 
on a strategy to ensure that elective partial-birth abortions remained 
available without real restrictions. In one memo, she lays out her plan 
to support a ``ban'' that includes a ``general health exception'' that 
would make the ban largely meaningless.
  Even when she heard that the American College of Obstetricians and 
Gynecologists was prepared to issue a statement stating that they 
``could identify no circumstances under which [the partial-birth] 
procedure . . . would be the only option to save the life or preserve 
the health of the woman,'' she continued her fight.
  In an internal White House memo, she notes that the medical statement 
``would be a disaster'' for the White House's case against the partial-
birth abortion ban. Documents show that she then drafted new language, 
hedging the original medical judgment, which the organization then 
published as their own, verbatim.
  She then authored a memo to President Clinton arguing that his 
preferred approach, without the health exception, was unconstitutional, 
and that ``the groups will go crazy.'' Of course, in 2003, Congress 
passed, and President Bush signed, a law prohibiting partial-birth 
abortion, without such a health exception. The Supreme Court upheld 
that law.
  Conclusion: I am afraid Ms. Kagan's record demonstrates that she 
substitutes her own political viewpoints for legal judgment. If 
confirmed, I believe Ms. Kagan will add to Washington's growing 
disregard for the Constitution of this country and its limits on 
government power, instead of protecting against intrusion and 
government actions, as the courts were designed to do.
  I thank the Chair.
  The ACTING PRESIDENT pro tempore. The Senator from New York.
  Mr. SCHUMER. I am going to speak in support of Solicitor Elena Kagan 
for the Supreme Court in a minute, but just for a brief minute, I wish 
to speak about another very important issue, the legislation we are 
about to vote on, the legislation that will help teachers and police 
officers and firefighters and other workers retain their jobs.
  I wish to thank my colleagues from Maine, Senator Olympia Snowe and 
Senator Susan Collins, for their courageous support of this measure. I 
would like to take a moment to talk about the critically important 
component of the legislation we will be voting on shortly.
  That component is called the local share language that will send 
critical aid directly to county governments in any State. The counties 
in my State are always worried. When we send the money to Albany, they 
never see it or they see it much later and Albany takes a cut. But 
legislation that I have been able to put into the bill says: If the 
local area pays for part of Medicaid, then they should be reimbursed 
directly.
  Anyone who is familiar with New York knows we have some of the 
highest property taxes in the Nation, way too high.
  In fact, residents in West Chester County have the unfortunate 
distinction of having paid the most in property taxes in the entire 
country. Nassau County residents follow quickly. On the list of the top 
20 counties with the highest property taxes, 5 are in New York. This 
provision, which will send a total of $530 million directly to local 
county governments, will have a tangible and important benefit for New 
Yorkers everywhere. Its No. 1 job is going to prevent counties from 
having to raise their already too high property taxes. County 
executives from one end of the State to the other--in Erie County, 
Nassau County, and others--have told me if they can get this money, 
this Medicaid relief--the Medicaid burden is so high--it will enable 
them to not raise property taxes. That is why I fought so hard to 
ensure this local share language was included in the first stimulus 
package and now in this bill. We know money sent to Albany far too 
often stays in Albany. The bill will not only provide property tax 
relief, it is an investment in our future. It will keep teachers in the 
classroom and cops on the beat and firefighters in the firehouses. A 
recession is no excuse to prevent the children from getting the best 
education they can get, no excuse for letting criminals get away from 
the dastardly crimes they commit.
  Speaking of our children and their futures, I wish to mention one 
more important thing. We are making these investments without adding a 
dime to the Federal deficit. In fact, this bill, in addition to the 
benefits it contains, will reduce the deficit by over $1 billion. 
Congress should be focused like a laser on fighting unemployment and 
getting the economy humming on all cylinders again. This bill is part 
of that ongoing effort. For the good of the country, I implore my 
colleagues to support this sensible, important bill.


                            Kagan Nomination

  Madam President, later today, we will confirm an exceptionally well-
qualified candidate to be an Associate Justice of the Supreme Court, 
and average Americans will be a step closer to once again having their 
voices heard in the highest Court in the land. This is because 
Solicitor General Elena Kagan brings both moderation and practical 
experience to a Court sorely in need of both.
  Why, then, are so many fighting over General Kagan, a nominee who is 
mainstream through and through? Why are so many fighting? Our judicial 
system is at the tipping point. Of the six most conservative Justices 
in living memory, four are on the Court right now. Two of those four 
were confirmed within the last 5 years. It didn't happen by accident. 
Many conservatives decry what they call liberal judicial activism, but 
what they want is judicial activism of the right. Make no mistake about 
that. There can be activists on the left and on the right. Both seek to 
impose their views rather than follow the law.
  The supposedly staunch opposition to judicial activism on the right 
has shown its true colors in this debate over a truly moderate and 
mainstream candidate. They themselves want rightwing judicial activism 
to pull this country into the past.

[[Page S6761]]

  I have always said the far right is using the only unelected branch 
of government to do what it cannot do through the two elected 
branches--turn back history to a time when corporations and large 
special interests had more say in our courts than ordinary people. The 
right has created a kind of judicial activism that is as pernicious as 
the activism on the left. But they do not see it that way. Activism is 
their very ideology.
  When George Bush was President and conservative majorities in the 
House and Senate still couldn't pull America back 100 years, they said: 
We need to do it by the Supreme Court. Hence, extremely conservative 
nominees were nominated and approved. As a result, our Court is on a 
collision course with precedent, with the other branches of government 
and, frankly, with the American people. General Kagan is exactly the 
antidote we need to put the Court back on the level, to put the bubble 
back on the plumb. General Kagan is a 6 or 7 on a scale of conservative 
to liberal, with 1 being the most conservative and the most liberal 
being 10. The President's nominees were ones, with an occasional two. 
They were way over to the far right. That is what independent, 
objective, not Democratic, not Republican analyses show. Again, four of 
the five most conservative Justices are on the Court right now.
  The American people are reaping the bitter harvest from new laws that 
have been made and old precedents that have been overturned. Put 
simply, in decision after decision, this conservative, activist Court 
has bent the law to suit an ideology. At the top of the list, of 
course, is the Citizens United case where an activist majority of the 
Court overturned a century of well-understood law that regulated the 
amount of money special interests could spend to elect their own 
candidates to public office.
  In the Ledbetter case, the Court upended decades of settled law and 
an agency interpretation to hold that a woman who received less pay 
than a male colleague is only discriminated against by the first 
paycheck, not by the last. There are many other examples, over and 
over--on the Clean Water Act, punitive damages against the 
Exxon Valdez, antitrust law where, again, favoring the special 
interests and turning back the law, this conservative majority has 
become the most activist Court certainly in decades. These truly 
activist decisions show little respect for Congress, for the executive 
branch, and for the well-settled understandings the American people 
commonly hold about our democracy. Yet somehow they label General Kagan 
as an activist, because she wants to follow precedent. That is not 
fair, and it is not true.

  The record shows that General Kagan's record is replete with cases, 
articles, opinions, and discussion that shows and proves she is well 
within the judicial mainstream. First, in the course of her nomination 
hearing, she answered more than 700 questions. She answered them with a 
degree of candor and specificity we simply did not see when either 
Justices Alito or Roberts were before us, nominees who, I submit, 
actually had conservative agendas to hide from the American people, 
unlike General Kagan who has nothing to hide. When she was asked her 
views on interpreting the Constitution, she gave reasoned, detailed 
answers, the most reasoned, detailed answers I can remember from a 
nominee. She gave candid and detailed answers about her views of 
specific precedent governing the right to privacy, the commerce clause, 
freedom of the press, the second amendment, civil rights, cameras in 
the courtroom, even about her role as Solicitor General.
  When Justice Alito was asked about his views of the takings clause, 
he gave an opaque answer about the value of owning private property, 
not even close to the specificity that General Kagan gave. But here we 
have Members on this side of the aisle saying they won't vote for Kagan 
because she is not specific enough, when they were in full support of 
Alito and Roberts who gave far less specific answers. Why? We know why. 
Again, the view on the right that they want their own brand of 
activism, judicial activism of the right to pull the Court and the 
country away from the mainstream.
  My colleagues' continuing insistence that General Kagan is hiding and 
outside the mainstream agenda says more about their agenda than hers. 
It appears to me the only way to explain some of my colleagues' 
opposition to General Kagan is, they will vote for only ones and maybe 
a few twos on the Supreme Court, people way over to the right side. And 
if one believes in judicial activism of the far right, that is exactly 
what one would do.
  A second sort of evidence of General Kagan's moderation is her 
stunningly broad bipartisan support. Each of the Solicitors General to 
serve under Democratic and Republican Presidents for the last 25 years 
has endorsed her. While at Harvard she got a standing ovation from, of 
all people, the Federalist Society, the training grounds for many of 
President Bush's conservative judicial nominees. She bridged the wide 
ideological divide between conservative and liberal faculty members. 
She brought together a faculty that had been fighting with one another. 
They came together under her thoughtful, pragmatic, and moderate 
decisions. As a result, to a Harvard faculty generally regarded as 
liberal, 
she bought in many conservative apppointments.
  Why then does General Kagan not have more bipartisan support within 
this body? Why will she get fewer votes today than all but two Justices 
in the history of the Court, Justices Alito and Thomas? Again, one need 
look no further than the sheer amount of law that has been undone by 
the current Court in the last few years, law that protects ordinary 
Americans against special interests and corporate interests.
  These are the wages of a war that the far right has mounted in order 
to remake the law. But General Kagan will not be a soldier in their 
fight and, hence, despite her moderation, does not get their vote.
  Having studied the Court's decision in Citizens United, I am 
increasingly convinced that their war will not be won until we return 
to 1905, to what legal historians call the Lochner era of Supreme Court 
jurisprudence. In 1905, squarely in the age of the robber barons, big 
railroads and even bigger oil, a very conservative majority of Justices 
held that the people of New York, my State, could not pass laws that 
limited the legal workweek to 60 hours. This is because the Justices 
found, somewhere in the due process clause of the 14th amendment, that 
business had an inherent right to conduct itself without any government 
regulation, even if public safety was at stake. One hundred years later 
in Citizens United--same country, different setting, different rules--
it does the same type of thing. Citizens United will go down as the 
21st century example of 20th century Lochner. Allowing corporate and 
special interests, now because they have so much money, to pour that 
money into our political system without even disclosure, without even 
knowing who they are or what they are saying or why they are saying it, 
they are taking politics away, government away from the average person 
because of the influence of such large amounts of dollars.
  Fortunately for Americans, General Kagan will be confirmed today, and 
gears of the time machine that is set to 1905 will be substantially 
slowed down. She will be confirmed with some bipartisan support, and I 
praise my colleagues on the other side who had the courage to break 
from the hard right. It takes courage to break from the extremes of 
either side. It is not easy. We all know that, no matter which party we 
are in. They have had the courage to do it. I salute them. She will be 
confirmed because she is mainstream, because enough of my colleagues 
recognize that her practical, real world experience will be a valuable 
asset to our judicial system and to our country.
  And about practical experience, she has it in very real and tangible 
ways. She is an accomplished lawyer, first female dean of the Harvard 
Law School, a public servant who worked in all three branches of 
government. Yet some on the other side call her inexperienced. It is 
hard to believe. In fact, General Kagan's experience does measure up to 
her colleagues and predecessors. Like Justice Thomas and the late 
Justice Rehnquist, General Kagan held high-level political jobs in the 
executive branch. Like William O. Douglas and Felix Frankfurter, she 
spent much of her career in academia. And like 38 other Supreme Court 
Justices

[[Page S6762]]

before her, she does not have direct judicial experience, although like 
many of them, she clerked for a Supreme Court Justice.
  Some of my colleagues have belittled General Kagan's experience as 
better suited to the backwaters of academia than a seat on the highest 
Court. I think this is wishful thinking on their part, perhaps because 
they know her real world experience will bring the Court back to the 
center.
  And, in fact, it is clear that her experience at Harvard Law School 
demonstrates, rather than undermines, her qualifications.
  Unlike every other current Justice on the Supreme Court, General 
Kagan ran a business. She understands much about how the real world 
functions that many of our current Justices simply do not.
  She managed 500 employees and a budget of $160 million annually. 
Plus, this real world management experience was forged in an 
environment that was ideologically charged when she arrived.
  But it was much less so when she left. Jack Goldsmith, whom Elena 
Kagan hired and who had been head of President Bush's Office of Legal 
Counsel, wrote of her:

       It might seem over the top to say that Kagan combines 
     principle, pragmatism, and good judgment better than anyone I 
     have ever met. But it is true.

  General Kagan's skills as a consensus builder are sorely needed on a 
fractious Court that often struggles to find the moderate ground 
between its two wings. A recent study showed that last term, the Court 
issued ``conservative'' opinions 65 percent of the time--more than any 
term in living memory.
  The fact that the pull to the right is so demonstrable suggests also 
that these decisions are often quite broad--as in the Citizens United 
case, where the issues that were decided had not initially been 
briefed. Someone as persuasive and perceptive as General Kagan could 
help to narrow these decisions, to put together 5 to 4 majorities that 
issue mainstream, modest opinions.
  An important component of General Kagan's pragmatic experience is her 
gender. As difficult as managing an ideologically diverse law school 
faculty is for anyone, General Kagan did it as the first woman. I have 
heard it said that Ginger Rogers did everything Fred Astaire did, but 
backwards and in high heels.
  The exact details obviously don't apply to General Kagan, but the 
sentiment does.
  Serving as the first female dean of Harvard, and the first female 
Solicitor General, has surely broadened her views and deepened her 
understanding of how Americans work and relate to one another. Her role 
as a woman in each of these institutions enriches the practical 
experience that she will bring to the Court.
  This is the candidate whom many of my colleagues have branded as an 
out-of-the-mainstream liberal activist.
  At the end of the day, it is fine to disagree with General Kagan's 
views and ideology. But labeling such a mainstream candidate as a 
liberal ideologue sets a troubling precedent. It moves the center 
further and further to the right.
  I am confident that General Kagan is the right candidate for the 
Supreme Court at the right time. I will proudly cast my vote for her.
  I yield the floor.

                          ____________________