Congressional Record, Volume 156 Issue 118 (Thursday, August 5, 2010)

[Congressional Record Volume 156, Number 118 (Thursday, August 5, 2010)]
[Senate]
[Pages S6803-S6830]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

EXECUTIVE SESSION

______

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

The PRESIDING OFFICER. The Senate will proceed to executive session
to

[[Page S6804]]

consider the following nomination, which the clerk will report.
The legislative clerk read the nomination of Elena Kagan, of
Massachusetts, to be an Associate Justice of the Supreme Court of the
United States.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. DODD. Mr. President, I rise this afternoon to express my very
strong support for the nomination of Solicitor General Elena Kagan to
serve as an Associate Justice on the U.S. Supreme Court. I would like
to thank Chairman Leahy and Ranking Member Sessions for their work
during the Judiciary Committee's recent hearings, as well as Majority
Leader Reid for moving Solicitor General Kagan's nomination through the
Senate confirmation process as he has.
There are very few powers exercised by this body that are more
important than its constitutionally mandated duty to give advice and
consent on the President's judicial nominations. The very essence of
our Nation's government rests on the supremacy of the rule of law, and
the Constitution is the highest embodiment of that principle. The men
and women whom we confirm to this Court are more than just judges. As
the chief interpreters of that seminal document, the Constitution, they
are guardians of the supremacy of the rule of law, upon which the
integrity of our entire system of justice has been built.
It is, therefore, no surprise that nominees to our Nation's highest
Court are subjected to such an intense level of scrutiny during the
Senate's confirmation process. Nevertheless, the Constitution does not
lay out a precise roadmap for how to do this. Therefore, each Senator
must decide for him or herself what criteria to use when evaluating the
merits of an individual Supreme Court nominee.
For my part, I have used the same, simple three-part test for Supreme
Court nominees since 1981, when I voted to confirm Sandra Day O'Connor
as the Court's first female Justice. Indeed, this is the 13th Supreme
Court nomination I have considered during my 30-year tenure in the
Senate--from Justice O'Connor to Elena Kagan today.
First, does the nominee have the technical competence and legal
experience to do the job of a Justice on the U.S. Supreme Court?
Second, does the nominee have the proper character and temperament to
serve on the High Court?
Third, does the nominee's record demonstrate respect for and
adherence to the principles underlying our legal system--that of equal
justice under the law?
For anyone who has read about her life or watched her performance
during the confirmation hearings held by the Judiciary Committee
earlier this summer, I believe it is abundantly clear that Elena Kagan
passes all three of these tests with flying colors.
On the question of Solicitor General Kagan's competency and
experience, I think there is little doubt that we are dealing with a
superbly qualified nominee.
Since her graduation from Harvard Law School in 1986, Elena Kagan has
enjoyed an illustrious legal and academic career.
After her graduation, Solicitor General Kagan had the honor of
clerking for two extremely distinguished and highly influential Federal
judges: U.S. Court of Appeals for the District of Columbia circuit
judge Abner Mikva, with whom I served in the House of Representatives,
and has been a great friend of mine for many years; and Thurgood
Marshall, the Nation's first African-American Supreme Court Justice.
Subsequently, after nearly a decade of legal work in the private
sector, as a professor at the University of Chicago Law School, and as
an Associate Counsel in the White House under the administration of
President Clinton, Ms. Kagan returned to her prestigious alma mater,
serving first as a professor of law and then as dean of the Harvard Law
School.
In an auspicious return to public service, Elena Kagan became the
Federal Government's chief lawyer before the Supreme Court last year
when she was confirmed by this body as our Nation's 45th Solicitor
General--a position often referred to, I might add, as the Court's
``10th Justice'' because of the extensive legal knowledge and close
working relationship with the Federal bench it requires.
I realize some of my colleagues have questioned Solicitor General
Kagan's nomination because of her lack of judicial experience--that
because Solicitor General Kagan has never been a judge in either a
State or Federal court she cannot be an effective Supreme Court
Justice.
I would, however, gently remind my colleagues that there is
absolutely no constitutional requirement that a Supreme Court nominee
have served previously as a judge. In fact, there is no requirement to
be a lawyer to serve on the Supreme Court of the United States. Since
our country's founding, well over one-third of the 111 individuals who
have served on our Nation's highest Court never put on a judge's robe
before their confirmation.
Indeed, William Rehnquist, who served as Chief Justice from 1986
until his death in 2005, had no prior work experience as a judge when
he was first appointed to the Court by President Nixon in 1971.
Nor did Justice Robert Jackson, a very close and dear personal friend
of my father who served with him at the Nuremberg Trials in 1945 and
1946. Robert Jackson served as U.S. Attorney General under Franklin
Roosevelt before being appointed to the Supreme Court in 1941.
I would, therefore, submit to my colleagues that there are other
important measures of the quality of a Supreme Court nominee besides
the depth of his or her experience on the bench. Solicitor General
Kagan's impressive list of career accomplishments and extensive base of
legal knowledge will, I believe, hopefully put those unfounded doubts
over her experience to rest.
Moving on to the two remaining parts of my test, Elena Kagan once
again proves she would make an excellent addition to our Nation's
highest Court.
As to her character, her graceful performance before the Judiciary
Committee and extensive list of enthusiastic recommendations from
Democrats, Republicans, and others across the entire spectrum reveal
her to be a person of the utmost integrity, professionalism, and sound
judgment. They also reveal, I think, a key aspect of her legal
philosophy--a deep and abiding respect for the rule of law and our
Nation's cherished principle of equality under the law.
As I said previously, Supreme Court Justices are not just judges,
they are stalwarts of our Nation's democratic values, guardians of the
idea that the rule of law should always transcend the rule of men. Each
of the Federal judicial nominees confirmed in this body has the ability
to shape every facet of the law and, in a larger sense, American
society in general. As a result, it is absolutely critical, in my view,
that we have members of the Supreme Court whose first obligation, above
all else, is to safeguard those guiding constitutional principles that
form the foundation of our democratic system of government and to fight
for the principle of equal justice under law.
I firmly believe that, when confirmed, Solicitor General Kagan will
hew closely to those critically important values and work to ensure
they are protected.
Once again, I wish to thank Chairman Leahy, our colleague Senator
Sessions, the ranking minority member, and the members of the Judiciary
Committee, who I think gave her a very fair, competent, and thorough
hearing during the nomination process. I also wish to commend Majority
Leader Reid for his hard work during this process. I urge my colleagues
to join those of us who believe this is a quality nominee who will
serve our country well as an Associate Justice of the United States
Supreme Court.
Mr. President, I thank my colleagues on the other side for giving me
a few minutes to express my views on this issue.
I yield the floor.
The PRESIDING OFFICER. The Senator from Alabama is recognized.
Mr. SESSIONS. Mr. President, I ask unanimous consent to participate
in a colloquy with a number of my Senate colleagues.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SESSIONS. Mr. President, we wish to enter into a discussion this

[[Page S6805]]

afternoon about a very critical issue in this confirmation process, and
that is the second amendment and the right to keep and bear arms as
provided for in our Constitution; the threat that now exists to that
right that is plainly stated in the Constitution, and why we think it
is worthy of serious consideration.
I will say that most Americans are totally unaware, perhaps, that the
second amendment and the power of the second amendment hangs by a mere
thread. Two five-to-four decisions recently have affirmed the second
amendment, but had that vote been different--one Justice voting a
different way--the second amendment would not apply to the District of
Columbia. It would not be considered a right that would apply even to a
Federal Government entity such as the District of Columbia as a result
of the Heller case.
A more recent case in Chicago, McDonald v. the City of Chicago, dealt
with whether the second amendment actually applies to the States and
does it only apply to the Federal Government. That was a big deal. If
it does not apply to the States, then any State in any city--and many
cities are perfectly willing to do this--would have the power to ban
firearms entirely, even though the Constitution plainly says you have
the right to keep and bear arms. This was the effect of that decision.
I see my colleague Senator Wicker from Mississippi here. I wish to
ask him if he would share with us: Does he believe Ms. Kagan's record
would provide us any insight into her views on the second amendment?
Because she would be one of the votes that would be critical as we go
forward in the future as to whether that amendment still has power and
force.
Mr. WICKER. I thank the ranking member for that question. I would
answer: Yes, indeed, her record, taken together with her committee
testimony, tells us a lot about Ms. Kagan's insight and feelings about
the second amendment.
Let me agree with my colleague from Connecticut, however, and say I
don't believe it is necessary for someone to have judicial experience
to be an effective member of the Supreme Court. Clearly that is not
called for in the Constitution. However, in a situation such as this,
where the nominee has never written a judicial opinion of her own,
where she has hardly any experience at all in the courtroom, I do think
it is appropriate--and actually necessary--for us to examine her life
experience and see what insights we can gain on her views on the second
amendment.
I would also say this: The debate is drawing to a close. The issue is
probably not in doubt, but I think we owe it to the Record, we owe it
to our constituents, we owe it to the American people to outline our
concerns with regard to the second amendment to the Constitution, to
the second article in the Bill of Rights. So I ask my colleagues to
indulge me by going through some of the life experiences this nominee
has.
Ms. Kagan began her law career clerking for a very antigun judge,
Abner Mikva, who later brought Ms. Kagan to the White House to serve as
his deputy. Judge Mikva once likened the National Rifle Association to
``a street crime lobby.''
Next, Ms. Kagan's own hostility to the second amendment rights became
evident during her time as a law clerk for Justice Thurgood Marshall
where as a clerk she wrote that she was ``not sympathetic'' to the
argument that the DC handgun ban violated an individual's second
amendment rights. This is disappointing and troubling. In this memo she
didn't cite text, precedent, or analyze the law or look to the
Constitution. Ms. Kagan inserted her personal beliefs and said: I am
not sympathetic to this individual right argument.
The case that comment involved was Lee Sandidge. A business owner was
arrested and convicted in the District of Columbia for possessing
ammunition and an unregistered pistol without a license. The law
provided up to 10 years in jail for this offense. Mr. Sandidge's second
amendment claim--the one that Ms. Kagan was not sympathetic toward--
challenged the very same DC total gun ban that was struck down later by
the Supreme Court in the Heller decision. Ms. Kagan's lack of sympathy
for Sandidge's claim demonstrates she failed to recognize that we have
an individual right as citizens to bear arms. I am very pleased that
the Supreme Court has now recognized this on two occasions, in Heller
as well as this year, in 2010, in McDonald.
Then Ms. Kagan embarked on what can only be described as a quest
against gun ownership and second amendment rights during her years in
the Clinton White House. She worked extensively on gun issues during
President Clinton's administration which was well known for such gun
control efforts. The record leaves no doubt that Ms. Kagan was a key
player in shaping Clinton White House restrictive gun policies. During
those years, she coauthored policy memos that advocated increased
restrictions on lawful gun owners, including legislation requiring
background checks for all secondary market gun purchases, a gun tracing
initiative, and a call for a new gun design ``that can be shot only by
authorized adults.'' According to the records of the Clinton
Presidential Library, Ms. Kagan also drafted an Executive Order
restricting the importation of certain semiautomatic rifles that were
not covered by statute. In other words, she authored an Executive Order
that went beyond the statute in her quest against gun ownership.
At the time of the import ban, a senior staffer who worked in the
Clinton domestic policy shop that was run by Ms. Kagan, described the
administration's plan as follows: ``We are taking the law and bending
it as far as it can to capture a whole new class of guns.'' This was
the office our nominee ran during that administration.
In addition, Ms. Kagan appears to have been in charge of the Domestic
Policy Council's effort to respond to the Supreme Court's 1997 ruling
in Printz v. the United States. The Printz case struck down parts of
the 1994 Brady handgun law on tenth amendment grounds. According to the
Clinton Library, even after the Supreme Court had ruled, the Clinton
administration, with Ms. Kagan involved, worked to preserve
unconstitutional provisions considered in many legislative and
executive branch responses to the Court's decision.
I would reiterate what my friend from Alabama has said. The right of
every American--the individual right we have to keep and bear arms
under the second amendment to the Constitution--hangs by a single vote,
and I am concerned that personal sympathies and a strong record of
opposition to the second amendment would influence the way this person
would act as a judge.
But there is one other thing, and I wish to ask my friend from Nevada
about this. During her testimony before the Judiciary Committee, Ms.
Kagan stated she had never had an occasion to look at the history on
which Heller is based, and, therefore, she could not say whether she
believed there is a preexisting individual, fundamental right to keep
and bear arms.
Here is a talented and intelligent and articulate and brilliant law
student and law professor and staffer who worked extensively on the
issue of second amendment rights for years, and she taught
constitutional law at one of the most prestigious institutions in this
country, yet she stated in her testimony that she had never had
occasion to look at the history on which this was based and, therefore,
she could not say whether there was a fundamental right to keep and
bear arms. I think her credibility was quite damaged by that statement.
I ask my friend Senator Ensign whether he was surprised when Ms.
Kagan made that statement based on her extensive experience and
interaction involving this issue?
Mr. ENSIGN. As a matter of fact, I was surprised. I think she did a
real disservice to her prior employers, Justice Marshall, President
Clinton, by not studying the history of the second amendment before she
provided them with legal advice. I also think she did a disservice to
her students, one that a professor of constitutional law should
understand.
Ms. Kagan confirmed the importance of studying founding documents
when interpreting second amendment rights when she said during her
Solicitor General hearing:

The individual rights view and the collective rights view
present cogent and sometimes powerful arguments. And I have
come

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away thinking that immersion in the primary sources, which I
have never attempted, would be necessary to choose between
them with any degree of confidence.

That is what she said. She confirmed this when I met with her as
well. Yet the choice between the individual and collective rights view
was crucial to her work for Justice Marshall in the Sandidge case and
was certainly important to her work during the Clinton administration.
Mr. THUNE. Would the Senator from Nevada yield for a question on
that?
Mr. ENSIGN. Yes.
Mr. THUNE. I heard my colleague say--and I would be interested in
having him confirm--didn't Ms. Kagan teach constitutional law and would
it not have been appropriate at that time for her to have looked at the
Founding Fathers' intent on the second amendment?
Mr. ENSIGN. As a matter of fact, she did teach constitutional law. I
suspect that in the course of her career, she came to understand where
the Founders included these words in the second amendment in the Bill
of Rights:

A well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear
Arms, shall not be infringed.

I don't think there was a lack of time or certainly a lack of ability
to find this source material, but I suspect it may be more of her
unwillingness to accept and ultimately admit that the Constitution and
the second amendment run contrary to her political beliefs. I find this
extremely troubling.
I also think it shows this nominee's tendency to rely on her own
personal beliefs and to read these into her decisions instead of the
intent of the Framers of the Constitution.
Mr. THUNE. Mr. President, I say to my friend from Nevada, it is
troubling--very troubling, and maybe even telling--that the President
would ask us to confirm an individual who admittedly has not reviewed
the justification for the second amendment in the Bill of Rights.
Mr. ENSIGN. I think my friend from South Dakota makes an excellent
observation. This admission of her failure to study the history
surrounding the second amendment is also in stark contrast to her
emphasis on the importance of students studying international law at
Harvard Law School.
When Solicitor General Kagan became dean of the Harvard Law School,
she spearheaded a sweeping overhaul of the academic curriculum to
require law students to take an international and comparative law
course during their first year.
When asked, ``What specific subjects or legal trends would you like
[Harvard] to reflect?'' she responded:

First and foremost, international law. . . . we should be
making clear to our students the great importance of
knowledge about other legal systems throughout the world. For
21st century law schools, the future lies in international
and comparative law, and this is what law schools today ought
to be focusing on.

She also said:

Our goal, then, has been to . . . better equip graduates to
be proactive and creative problem solvers . . . to work with
a global perspective, whether the particular problem involves
a local contract dispute, or an international treaty.

Thanks to Dean Kagan, international law is a required course at
Harvard Law School for first-year law students. However, constitutional
law--U.S. constitutional law--is not only not a first-year
requirement--in fact, somebody graduating from Harvard Law School can
graduate without ever taking U.S. constitutional law.
Mr. SESSIONS. If the Senator will yield, this is a troubling thing.
Justice Scalia has been a fierce critic of this, pointing out: What
country do you pick? Do judges get to pick their own?
It seems to me, from what the Senator said, it is clear that the
President's nominee to our highest Court in the United States has felt
that the world of international law is more important than studying our
own Constitution.
Mr. ENSIGN. That is the way it appears to me. This is another example
of where her personal beliefs come in to affect the way she is going to
be as a judicial activist.
Mr. SESSIONS. I agree. I think we must study what our Constitution
says, what the people who wrote it meant, and what rights the people
retained for themselves when they created it and gave certain limited
rights to the Federal Government. I do believe the history of the
second amendment is important. What is the history surrounding the
founding of our country and the drafting of the second amendment?
Mr. ENSIGN. I am glad the Senator from Alabama asked that critical
question. I think it is so important for Americans, people in this
body, but especially our Supreme Court Justices, to understand.
We have to remember that the founding generation had just finished
fighting the Revolution against a tyrannical government. They knew the
true value of having an armed citizen population.
Thomas Paine wrote in ``Thoughts on Defensive War'' in 1775:

Arms discourage and keep the invader and plunderer in awe,
and preserve order in the world, as well as property. . . .
Horrid mischief would ensue were the law-abiding deprived of
the use of them.

Thomas Jefferson once said in a 1787 letter to William Smith:

And what country can preserve its liberties, if its rulers
are not warned from time to time that this people preserve
the spirit of resistance? Let them take arms. . . .

Patrick Henry said:

Are we at last brought to such an humiliating and debasing
degradation that we cannot be trusted with arms for our own
defense? Where is the difference between having our arms
under our own possession and under our own direction, and
having them under the management of Congress? If our defense
be the real object of having those arms, in whose hands can
they be trusted with more propriety, or equal safety to us,
as in our own hands?

In fact, if you only take a cursory look at the 20th century, every
single government that has perpetrated genocide has first disarmed its
citizens. It is my understanding that every known dictator who has come
to power has followed this course.
Mr. SESSIONS. Well, did our Founding Fathers actually know this? What
was their intent with regard to preserving the right to keep and bear
arms when this language went into the Constitution?
Mr. ENSIGN. I know that our Founders certainly looked at writings of
prominent philosophers when debating the importance of the right to
keep and bear arms.
William Blackstone, whom the Supreme Court has called the
``preeminent authority on English law for the founding generation,''
cited the right to keep and bear arms as ``one of the fundamental
rights of Englishmen,'' calling it ``the natural right of resistance
and self-preservation--the right of having and using arms for self-
preservation and defense.''
Judge St. George Tucker, who wrote the first commentary on the
Constitution in 1803, describes the second amendment as ``the true
palladium of liberty.''
He continued:

The right to self-defence is the first law of nature: in
most governments it has been the study of rulers to confine
the right within the narrowest limits possible. Wherever
standing armies are kept up, and the right of the people to
keep and bear arms is, under any colour or pretext
whatsoever, prohibited, liberty, if not already annihilated,
is on the brink of destruction.

Judge Tucker also said:

If, for example, a law passed by congress, prohibiting the
free exercise of religion . . . or abridging the freedom of
speech, or of the press; or the right of the people to
assemble peaceably, or to keep and bear arms; it would, in
any of these cases be the province of the judiciary to
pronounce whether any such act were constitutional. . . . The
judiciary, therefore, is the department of the government to
whom the protection of the rights of the individual is by the
constitution especially, confided, interposing its shield
between him and the sword of usurped authority, the darts
of oppression, and the safety of faction and violence.

I would like to ask my colleague from Mississippi, what did Ms. Kagan
say about this natural right of self-defense?
Mr. WICKER. I simply look to her own testimony. I think it is
troubling--particularly for a law professor and somebody who dealt with
the issue for decades--when asked at her hearing whether she personally
believes there was a right to self-defense that existed before the
Constitution, she said she ``didn't have a view of what are natural
independent of the Constitution.''
Maybe Solicitor General Kagan was tired by that time. Maybe she had
been told by her handlers--the people at the Department of Justice--
that it is best

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to simply not answer that. But I say to my colleagues, we are endowed
by our Creator with certain inalienable rights. We don't get them from
the Constitution. Those rights are there. Certain rights are
enumerated, including the second amendment rights, in the Constitution.
For a Justice of the Supreme Court not to understand that causes me
problems, and it causes me to think that she just doesn't have a very
well-founded view of the second amendment.
Mr. ENSIGN. Well, I think her statement was shocking. It also proves
she doesn't believe the second amendment codifies the preexisting
natural right to self-defense.
Her statement is in stark contrast with the belief of our Founders,
who fervently believed that the right to keep and bear arms was a
natural right. Our Founders discussed natural rights in one of the
founding documents, the Declaration of Independence:

We hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator with
certain unalienable rights, that among these are life,
liberty, and the pursuit of happiness.

Yet Ms. Kagan doesn't ``have a view of what are natural rights
independent of the Constitution.'' The failure to recognize the natural
right to self-defense as articulated by our Founders and expressed in
the Bill of Rights, I believe, is deeply disturbing.
The Constitution doesn't create these inalienable rights, as the
Senator from Mississippi said. It recognizes and protects these rights
that are considered bestowed upon us by our Creator.
Mr. WICKER. The Senator is correct. The phrase ``a right of the
people'' is used two other times in the Constitution and the Bill of
Rights--in the first amendment's assembly and petition clause, the
fourth amendment's search and seizure clause, and a very similar phrase
is used in the ninth amendment, where the Founders stated that ``the
enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.''
In all three instances, the Framers were referring to individual
rights and not to collective rights. Nowhere in the Constitution does a
``right'' attributed to ``the people'' refer to anything but an
individual right. It is the same with the second amendment.
This has been affirmed in the Heller case. Judge Sotomayor, when
testifying before us, said she thought that was settled law. The
decision this year, in which she dissented, makes me wonder about that,
and it gives me grave concern, with a 5-to-4 Court, about what might
happen to precedent and what I believe now is settled law.
Let me ask the ranking member, during Ms. Kagan's hearing, she was
questioned about her statement that she believes precedent trumps
original intent. What does this mean with regard to the second
amendment rights, based on the pre-Heller precedent?
Mr. SESSIONS. It is a troubling statement. I think, clearly, it
allows her to justify voting--if confirmed to the Supreme Court--to
eviscerate the second amendment. There are some earlier cases before
the 14th amendment was even passed, or before the first 10 amendments,
the Bill of Rights, were applied to the States in any systematic way
that you could rely on as precedent, which could indeed trump, in her
words, the original intent of the Constitution.
What did the people ratify? They ratified the Constitution that, in
fact, just before the Founders signed it, they said ``we do ordain and
establish this Constitution for the United States''--not some other
judicial opinion 100 years later.
I think it raises troubling questions about where she stands on that.
In the light of Heller and McDonald, which were razor-thin 5-to-4
decisions, made within the last 2\1/2\ years, we have to acknowledge
that the Supreme Court is not, with clarity, committed to the plain
application of the second amendment.
Mr. THUNE. If I might ask the Senator from Alabama this--because he
is the ranking member on the Judiciary Committee. I know he has dealt
with numerous nominees to the Supreme Court in the past, as well as
probably hundreds of other judicial nominees. Does the Senator recall
how often those nominees had a record on second amendment rights?
Mr. SESSIONS. Well, most nominees have not had a record on it, but it
is interesting, and perhaps noteworthy, that President Obama, who
himself has not been a strong supporter of the second amendment rights,
and many of his supporters and Cabinet members are openly hostile to
it, the two nominees for the Supreme Court he has submitted, Justice
Sotomayor and Kagan, have had records that indicate a hostility to it.
Even though Judge Sotomayor, in her testimony, indicated she considered
this settled law--the Heller decision--her decision less than a year
later in the Chicago McDonald case, on a similar but somewhat different
issue, was not consistent with the belief that the Supreme Court had
settled the question in Heller. So this was a troubling thing. I think
the Attorney General of the United States, Eric Holder, has argued very
vociferously to restrict gun rights.
This is the top law enforcement officer in the country. I do believe
this is a matter of some concern, in fact, that we may be moving into a
period in which the government, the big city in Washington, the elites
who control this, who come out of an environment where they are not
comfortable with guns, are oblivious and insensitive to the right that
I believe was critical to our Founders in ratifying the Constitution.
They wanted to know that they had a right to keep and bear arms, and it
was important to them that the right was in the Constitution.
I ask Senator Thune, have any of the outside groups that are
concerned about these issues spoken out about this nomination?
Mr. THUNE. They have. I simply say to my colleague from Alabama, in
his remarks he noted the pattern we are starting to see that exists
with regard to--the Senator from Alabama mentioned the Attorney General
of this administration and their nominees to the Supreme Court. What
that has done is galvanized those at the grassroots level who are very
concerned about what they see happening and how it might threaten and
put in danger the second amendment right that many of them have enjoyed
and believe is something that ought to be protected in the future--it
ought to be protected by the Supreme Court, it ought to be protected by
the Congress, it ought to be protected by the President of the United
States.
We see some of these grassroots people who are concerned about this
issue give voice to their concerns through organizations such as the
NRA, for example, and Gun Owners of America. I wish to point out, if I
may, that both of these organizations have written letters in
opposition to Ms. Kagan's nomination.
I ask unanimous consent to have printed in the Record these letters.
There being no objection, the material was ordered to be printed in
the Record, as follows:

National Rifle Association

of America,

Fairfax, VA, July 1, 2010.
Hon. Patrick Leahy,
Chairman, Senate Committee on the Judiciary, Dirksen Senate
Office Building, Washington, DC.
Hon. Jeff Sessions,
Ranking Member, Senate Committee on the Judiciary, Dirksen
Senate Office Building, Washington, DC.
Dear Chairman Leahy and Ranking Member Sessions: We are
writing to announce the National Rifle Association's position
on the confirmation of Solicitor General Elena Kagan as
Associate Justice of the United States Supreme Court.
Other than declaring war, neither house of Congress has a
more solemn responsibility than the Senate's role in
confirming justices to the U.S. Supreme Court. As the Senate
considers the nomination of Solicitor General Kagan,
Americans have been watching to see whether this nominee--if
confirmed--would respect the Second Amendment or side with
those who have declared war on the rights of America's 80
million gun owners.
During confirmation hearings, judicial nominees make
carefully crafted statements regarding issues with which they
do not personally agree. They often speak in terms of
``settled law'' or ``I understand the right''. When those
statements are contradicted by an entire body of work over a
nominee's career, however, it would be foolhardy to simply
take them at face value. In Ms. Kagan's own words, ``you can
look to my whole life as to what kind of justice I would
be.'' We agree.

[[Page S6808]]

As she has no judicial record on which we can rely, we have
only her political record to review. And throughout her
political career, she has repeatedly demonstrated a clear
hostility to the fundamental, individual right to keep and
bear arms guaranteed under the U.S. Constitution.
As a clerk for Justice Thurgood Marshall, Ms. Kagan said
she was ``not sympathetic'' to a challenge to Washington,
D.C.'s ban on handguns and draconian registration
requirements. As domestic policy advisor in the Clinton White
House, a colleague described her as ``immersed'' in President
Clinton's gun control policy efforts. For example, she was
involved in an effort to ban more than 50 types of commonly-
owned semi-automatic firearms--an effort that was described
as: ``taking the law and bending it as far as we can to
capture a whole new class of guns.'' And as U.S. Solicitor
General, she chose not to file a brief last year in the
landmark case McDonald v. Chicago, thus taking the position
that incorporating the Second Amendment and applying it to
the States was of no interest to the Obama Administration or
the federal government. These are not the positions of a
person who supports the Second Amendment.
During her confirmation hearings last year, Justice Sonia
Sotomayor repeatedly stated that the Supreme Court's historic
Heller decision was ``settled law''. Even further, in
response to a question from Chairman Leahy, she said ``I
understand the individual right fully that the Supreme Court
recognized in Heller.'' Yet last Monday in McDonald, she
joined a dissenting opinion which stated: ``I can find
nothing in the Second Amendment's text, history, or
underlying rationale that could warrant characterizing it as
`fundamental' insofar as it seeks to protect the keeping and
bearing of arms for private self-defense purposes''.
We would also note that both Heller and McDonald were 5-4
decisions. The fact that four justices would effectively
write the Second Amendment out of the Constitution is
completely unacceptable. Ms. Kagan has repeatedly declined to
say whether she agrees with the dissenting views of justices
Stevens, Breyer, Ginsburg and Sotomayor, which leaves
unanswered the very serious questions of whether she would
vote to overturn Heller and McDonald or narrow their holdings
to a practical nullity.
This nation was founded on a set of fundamental freedoms.
Our Constitution does not give us those freedoms--it
guarantees and protects them. The right to defend ourselves
and our loved ones is one of those. The fundamental,
individual right to keep and bear arms is another. These
truths are what define us as Americans.
Any individual who does not believe that the Second
Amendment guarantees a fundamental right and who does not
respect our God-given right of self-defense should not serve
on any court, much less receive a lifetime appointment to the
highest court in the land. Justice Sotomayor's blatant
reversal on this critical issue requires that we look beyond
statements made during confirmation hearings and examine a
nominee's entire body of work. Unfortunately, Ms. Kagan's
record on the Second Amendment gives us no confidence that if
confirmed to the Court, she will faithfully defend the
fundamental, individual right to keep and bear arms of law-
abiding Americans.
For these reasons, the National Rifle Association has no
choice but to oppose the confirmation of Solicitor General
Elena Kagan to the U.S. Supreme Court. Given the importance
of this issue, this vote will be considered in NRA's future
candidate evaluations.
Thank you for your attention to our concerns. Should you
have any questions or wish to discuss further, please do not
hesitate to call on us personally.
Sincerely,
Wayne LaPierre,
Executive Vice President, NRA.
Chris Cox,
Executive Director, NRA-ILA.
____

Gun Owners of America,

Springfield, VA, August 5, 2010.
Dear Senator: You will soon vote on the confirmation of
Elena Kagan to the U.S. Supreme Court.
During her confirmation hearings, Kagan ducked and dodged
questions about the Second Amendment and refused to declare
whether she believes the Second Amendment protects an
individual right.
Kagan insisted that the Supreme Court decisions in Heller
and McDonald should be treated as precedent and ``settled
law,'' but this in no way precludes her from ruling that
almost any gun law--including gun owner registration,
purchasing limits, waiting periods, private sale background
checks, and more--is consistent with the Constitution.
Recall the confirmation hearings of Sonia Sotomayor, the
newest Supreme Court Justice. Sotomayor assured the Senate,
and the American people, that she accepted the Court's ruling
in Heller that the Second Amendment protects an individual
right.
Yet, in the McDonald case, Sotomayor joined the dissent in
writing that ``I can find nothing in the Second Amendment's
text, history, or underlying rationale that could warrant
characterizing it as `fundamental' insofar as it seeks to
protect the keeping and bearing of arms for private self-
defense purposes.''
Ms. Kagan has made the same promises to the Senate, but the
available evidence portrays her as a forceful advocate of
restrictive gun laws and as a person driven by political
considerations rather than the rule of law.
While Ms. Kagan does not have a record of judicial
opinions, her views on the Second Amendment are no mystery.
Some considerations that have come to light since her
nomination include:
While serving in the Clinton administration, Ms. Kagan
drafted an executive order to ban certain semi-automatic
firearms;
Ms. Kagan suggested that the President could issue another
executive order--bypassing Congress--to ban gun purchases
without prior approval from the federal government;
As a law clerk, Elena Kagan advised against the Supreme
Court considering Sandidge v. United States in a case that
questioned the constitutionality of the D.C. gun ban, writing
that she was ``not sympathetic'' to the gun owner's Second
Amendment claims; and,
Kagan was part of the Clinton team that pushed the firearms
industry to include gun locks with all gun purchases and was
in the Clinton administration when the President pushed
legislation that would close down gun shows.
Elena Kagan poses such a threat to the Second Amendment
that it would be better for the Supreme Court to begin its
2010-2011 session with only eight Justices, than for this
radical nominee to be confirmed.
On behalf of over 300,000 members of Gun Owners of America,
I urge you to ``NO'' on this nominee's confirmation.
Sincerely,
John Velleco,
Director of Federal Affairs.

Mr. THUNE. Mr. President, I continue by saying that after reviewing
Ms. Kagan's record of testimony at the confirmation hearing, Gun Owners
of America concluded:

. . . the available evidence portrays her as a forceful
advocate of restrictive gun laws and as a person driven by
political considerations rather than the rule of law.

The NRA went on to write:

. . . Ms. Kagan's record on the Second Amendment gives us
no confidence that if confirmed to the Court, she will
faithfully defend the fundamental, individual right to keep
and bear arms of law-abiding Americans.
For these reasons, the National Rifle Association has no
choice but to oppose the confirmation of Solicitor General
Elena Kagan to the U.S. Supreme Court. Given the importance
of this issue, this vote will be considered in the NRA's
future candidate evaluations.

Yes, the answer to the question of the Senator from Alabama is both
the NRA and Gun Owners of America have opposed not only this nomination
but also Justice Sotomayor's nomination.
Mr. President, I ask unanimous consent to have printed in the Record
the NRA's letter in opposition to the Sotomayor nomination.
There being no objection, the material was ordered to be printed in
the Record, as follows:

National Rifle Association

of America,

Fairfax, VA, July 23, 2009.
Hon. Harry Reid,
Majority Leader, U.S. Senate, The Capitol, Washington, DC.
Hon. Mitch McConnell,
Republican Leader, U.S. Senate The Capitol, Washington, DC.
Dear Leader Reid and Leader McConnell: We are writing to
express the National Rifle Association's opposition to the
confirmation of Judge Sonia Sotomayor as Associate Justice of
the United States Supreme Court.
From the outset, the National Rifle Association respected
the confirmation process and hoped for mainstream answers to
bedrock questions. Unfortunately, Judge Sotomayor's judicial
record and testimony during the Senate Judiciary Committee
hearings clearly demonstrate a hostile view of the Second
Amendment and the fundamental right of self-defense
guaranteed under the U.S. Constitution.
We are particularly dismayed about the U.S. Court of
Appeals for the Second Circuit's recent decision in the case
of Maloney v. Cuomo, in which Judge Sotomayor refused to
follow Supreme Court precedent by conducting a proper
incorporation analysis of the Second Amendment, concluding
instead that the right to keep and bear arms does not protect
all law-abiding Americans living in every corner of this
nation.
In addition, Judge Sotomayor was a member of the panel in
the case of United States v. Sanchez-Villar, where (in a
summary opinion) the Second Circuit dismissed a Second
Amendment challenge to New York State's pistol licensing law.
That panel, in a terse footnote, cited a previous Second
Circuit case to claim, ``the right to possess a gun is
clearly not a fundamental right.''
It is only by ignoring history that any judge can say that
the Second Amendment is not a fundamental right and does not
apply to the States. The one part of the Bill of Rights that
Congress clearly intended to apply to all Americans in
passing the Fourteenth Amendment was the Second Amendment.
History and congressional debate are clear on this point.
We believe any individual who does not agree that the
Second Amendment guarantees a fundamental right and who does
not

[[Page S6809]]

respect our God-given right of self-defense should not serve
on any court, much less the highest court in the land. Given
the importance of this issue, the vote on Judge Sotomayor's
confirmation will be considered in NRA's future candidate
evaluations.
Thank you for your attention to our concerns. Should you
have any questions or wish to discuss further, please do not
hesitate to call on us personally.
Sincerely,
Wayne LaPierre,
Executive Vice President, NRA.
Chris Cox,
Executive Director, NRA-ILA.

Mr. THUNE. Mr. President, the NRA wrote in that case:

. . . Judge Sotomayor's judicial record and testimony
during the Senate Judiciary Committee hearings clearly
demonstrate a hostile view of the Second Amendment and the
fundamental right of self-defense guaranteed under the U.S.
Constitution.

Mr. ENSIGN. Mr. President, I ask my friend from South Dakota, why is
it so significant that both of these groups have opposed her
nomination?
Mr. THUNE. I say to my colleague from Nevada, it comes down to their
horrible record on gun rights. It made it impossible for these two
organizations to conclude that they would be impartial constitutional
judges on this issue even though they tried to convince Senators
otherwise during their confirmation hearings.
These groups had their concerns about Justice Sotomayor validated on
June 30, 2010, when she ruled again that the second amendment is not a
fundamental right. Justice Sotomayor assured Senators during her
hearing that she believed the second amendment guaranteed an individual
right to keep and bear arms. But then in her first ruling on the second
amendment as a Supreme Court Justice, she joined the minority opinion
in McDonald v. Chicago and failed to protect this individual right, as
confirmed by the majority of the Court, for citizens living in the 50
States.
Specifically, at Justice Sotomayor's hearing, she said that she
``understood the individual right fully that the Supreme Court
recognized in Heller'' and ``knew how important the right to bear arms
is to many Americans,'' and that she did not consider the right
``unfundamental.''
This is in stark contrast to the opinion she signed onto in McDonald
that I said--this is a quote from the McDonald opinion:

I can find nothing in the Second Amendment's text, history,
or underlying rationale that could warrant characterizing it
as fundamental, insofar as it seeks to protect the keeping
and bearing of arms for private self-defense purposes.

I know that many in this body, especially those who supported her
confirmation, were surprised by what is seemingly a 180-degree turn.
While I had hoped we could trust her word, I was concerned that her
record did not fit her statements at the hearing. I had concerns that
her true feelings were much more hostile toward the second amendment
right than what she was letting on.
Specifically, I had concerns with two different cases she decided as
a circuit court judge, including one after the Supreme Court already
recognized the second amendment was an individual right, where she held
in that case that the second amendment was ``clearly not a fundamental
right'' and did not apply to the States.
There were some Senators at the time who were not as concerned by
this record as I was and some of the others of us in the Chamber were
and went so far as to say--this is a quote from one of our colleagues:

I do not see how any fair observer could regard her
testimony as hostile to the second amendment personal right
to bear arms, a right she has embraced and recognized.

That is something said by one of our colleagues in the Senate during
the Sotomayor confirmation.
While what Justice Sotomayor said during the hearing certainly gave
the impression that she believed in the individual right to keep and
bear arms, her prehearing record demonstrated her true beliefs.
I am here today to urge those Members who proclaim to strongly
support the second amendment not to be fooled a second time. Ms. Kagan
was asked about the second amendment on a number of occasions at her
hearing, and each time her response was merely a mimic of Justice
Sotomayor's statements on the second amendment at her hearing.
Ms. Kagan would go no further than to acknowledge that the important
Supreme Court decisions in Heller and McDonald are ``precedent'' and
``settled law entitled to all the weight the precedent usually gets.''
I believe there is no question that Ms. Kagan will follow in the
footsteps of Justice Sotomayor and revert to the beliefs demonstrated
by her anti-second amendment record rather than her posturing during
her confirmation hearing.
That is the reason the NRA and other groups that treasure the
fundamental right to keep and bear arms, such as Gun Owners of America,
oppose her nomination, just as they did Justice Sotomayor's.
The only question that remains for us in the Senate is whether pro-
second amendment Senators who voted for Justice Sotomayor have learned
their lesson and will vote against the Kagan nomination.
I say to my colleagues from Nevada and Alabama, as the old saying
goes: Fool me once, shame on you; fool me twice, shame on me. For the
sake of gun owners across the country, I hope they will not be fooled
again.
I say to my colleagues from Nevada and Alabama, with all the
unanswered questions that remain after the Heller and McDonald cases,
are there not lots of reasons why those grassroots people across this
country--those gun owners, those people who care profoundly about the
right to keep and bear arms--ought to be concerned? For example, what
is a sensitive place? Who needs to register? There are going to be
registration laws that are put in place. How is the issue of
microstamping and the mandates and requirements that might be
associated with that going to impact this fundamental second amendment
right?

Mr. ENSIGN. Mr. President, I ask the ranking member about the
McDonald case, and maybe he can go into some details about the McDonald
case and the significance of that when it comes to future decisions.
Mr. SESSIONS. The McDonald case was a hugely important case. It dealt
for the first time in recent memory with the question of whether the
second amendment, which had been held in Heller to apply to the Federal
Government, whether it passed through the 14th amendment to apply to
all the States--and cities are creatures of States, so whether it
applied to cities.
This is a big deal because it is not generally so much the Federal
Government that is willing to deny gun rights, but certain States and
certain cities seem very aggressively willing to deny people's second
amendment rights.
The question for the Court was: Is it a fundamental right in the Bill
of Rights, a stated fundamental right, and if it is fundamental, it
passes through the 14th amendment and all States must comply with it,
just as States must comply with the right to free speech and other
rights in the Constitution.
By a razor thin 5-to-4 majority, the Supreme Court in McDonald held
that it is a fundamental right and does apply to the States, and no
State, therefore, and no city can deny an individual right of an
American citizen to keep and bear arms. This is a big, important case.
Justice Sotomayor--who suggested otherwise in her testimony--as
Senator Thune said, her record suggested she would rule that way, rule
with the four that it did not apply to the States. It is a big deal.
Mr. ENSIGN. In the McDonald case, as I understand, there were several
restrictions put on citizens when it came to their second amendment
right: paying a $100 processing fee and a $15 fee for each gun
registered; undergo and pass a firearms safety test which consists of 4
hours of training and 1 hour target range practice, which, by the way,
costs about $100 for each one of those activities; undergo and pass a
vision test, if you do not have an Illinois driver's license; provide
fingerprints; be at least 21 years of age or 18 years with parents'
permission; wait 45-120 days for processing; own only one operational
firearm; and reregister every 3 years.
I ask the ranking member, why are these restrictions necessary?
Mr. SESSIONS. The question becomes: Does it impact a fundamental

[[Page S6810]]

right? At some point it does. We decided you cannot put a poll tax on
people to say you have to pay money for your right to vote. People do
not have to pay for the right to speak out about advocate beliefs
because you have a right to free speech.
I do think these restrictions, as they increase, can reach a point of
denial of people's individual right to keep and bear arms. We want to
be sure that a judge not only recognizes it is a constitutional
individual right but that the judge recognizes that some of these
restrictions we accept and are legitimate go too far.
Mr. ENSIGN. I will add, concluding my remarks, that this issue is of
critical importance. Without the second amendment, the rest of the Bill
of Rights can go away. That is what our Founders recognized. Our
colleagues, before they vote on Solicitor General Kagan, need to
understand that. That is why this colloquy is so important today. We
have brought out some very important points.
It was an honor to be with my colleagues to discuss Solicitor General
Kagan's views on the second amendment and how that potentially could
impact her decisions in the future.
Mr. THUNE. Mr. President, I close by saying as well, I think in all
cases, you have to judge people not by what they say but by what they
do. Clearly, the record would suggest, as it did with Justice
Sotomayor, a certain hostility toward the second amendment right.
Obviously, statements at the Judiciary Committee hearings suggesting an
openness to this or acknowledging settled law or precedents or all
those sorts of things were meaningless in regard to the Chicago case
with regard to Justice Sotomayor.
If we look at the long history of Ms. Kagan with regard to this
issue, I think we can conclude where she is going to end up.
It is a critical issue because these are 5-to-4 decisions. These are
very narrow decisions that strike at the very heart of a fundamental
constitutional right that people in this country deserve to have their
leaders, both elected leaders and people on the Court, protect. I am
very concerned about where that is headed with this nominee.
I yield to the Senator from Alabama.
Mr. SESSIONS. I thank my colleagues for this nice and valuable
discussion. I will say that one of the unjustifiable actions of the
judicial activist philosophy that is too much afoot in America today is
their willingness to completely be oblivious to plain constitutional
rights, things that are flatly stated, and then to create rights that
do not exist.
For example, the Constitution gives the right to free press, but we
had Solicitor General Kagan arguing before the Supreme Court in defense
of this campaign finance bill that a corporation could be prohibited
from producing a pamphlet before an election that might be critical of
a politician. I mean, that is what the first amendment was about. It
wasn't about pornography or flag burning, for heaven's sake. It was
about political speech, plainly in the Constitution. Yet we had four
members of the Supreme Court--a vote in an opinion recently--who said
the government could ban the pamphlets. Actually, another lawyer for
the government argued you could ban books.

The Supreme Court, by a 5-to-4 majority did, in fact, say that you
could take a man's private drugstore--the government could--and give it
to another man who had a competing drugstore; in other words, taking
private property for private use. The Constitution says you can't take
private property except for public use under condemnation. A plain
violation, 5-to-4 approved.
By two 5-to-4 decisions--the narrowest of margins--we had the plain
constitutional right that Americans have to keep and bear arms hang by
one vote. We have another example of a judge in California yesterday
declaring that the Constitution somewhere says a State must declare
that a union between same-sex couples has to be defined in the same way
and recognized in the same way as a marriage, even after California had
a referendum in which millions of Californians voted differently. A
single judge, with no clear constitutional authority at all--in fact,
no real constitutional authority--declared that invalid and wiped it
out.
So I would suggest that people who are using this court to promote
their agendas need to be careful. Don't think you can play with the
first amendment. Don't think you can play with the second amendment.
Don't think you can play with the constitutional right to have your
property not taken by the government except for public use. If you can
start wiping those rights out, what right next will the Court come and
take? What right next will the central government come and take from
you?
So if you love this Constitution and respect it and believe it is a
great bulwark for freedom, prosperity, and liberty, I suggest there is
only one way to handle it, Mr. President: enforce it as written whether
you like it or not.
I thank the Chair, and I yield the floor.
The PRESIDING OFFICER. The Senator from Texas.
Mr. CORNYN. Mr. President, I want to address the nomination of
Solicitor General Kagan to serve on the U.S. Supreme Court. Earlier
this week, I discussed my opposition to the nomination, but at that
time I didn't go into any depth about my concerns with regard to her
participation in the military recruiting policy that banned the U.S.
military from the Office of Career Services at Harvard Law School.
While this incident has been discussed a lot, I think it is very
important to establish for the record exactly what happened. I believe
a due respect for the men and women of our military and the gravity of
this debate demand a full review of the facts behind what Elena Kagan
did as dean of the Harvard Law School to exclude and stigmatize the
U.S. military.
Harvard Law School adopted an antidiscrimination policy in 1979. This
policy states that any employer that wished to use the Office of Career
Services at the law school had to sign a statement affirming that it
does not discriminate on various bases, including sexual orientation.
The military--not just because of its policy but because of the policy
of the Congress and the law that we passed--could not sign this
statement because of the don't ask, don't tell policy adopted during
the Clinton administration.
In 1993, when a Democratic Congress and the Clinton administration
changed the military's outright ban on gays in the military to adopt
this don't ask, don't tell policy, Harvard took the position that the
military was still not in compliance with its antidiscrimination
policy. As a result of Harvard's policy, from 1979 through 2002, the
U.S. military was barred from recruiting individuals at the Harvard Law
School's Office of Career Services, where everyone else who was
recruiting on campus was allowed to conduct interviews and recruit
potential candidates.
While this ban on the services of the Office of Career Services was
in effect, the Harvard Law School Veterans Association essentially took
the place of the Office of Career Services and established an off-
campus interview forum for law students interested in serving their
country in the U.S. military. So because they were banned from the
Office of Career Services, the military had to look for an alternative
venue or forum provided by the Harvard Law School Veterans Association
in order to conduct those interviews.
But then something very important happened. In 1995, Congress enacted
another law, popularly known as the Solomon Amendment. The Solomon
Amendment said you cannot receive Federal funds--if you are an
educational institution--if you, in effect, prohibit military
recruiting on your campus. In other words, they could have continued
their policy of discrimination against the military, but they would
have been denied Federal funds under the plain wording of the Solomon
Amendment passed in 1995.
The Secretary of Defense, under the Solomon Amendment, has to make a
finding that the school is not offering access to military recruiters
that is ``equal in quality and scope to the access that the school
provides other employers.'' That was the 1995 law. In 2002, the
Secretary of Defense of the United States found that Harvard's
exclusion of military recruiters from the Office of Career Services was
not ``equal access.''
In response to this Federal law and the finding by the Secretary of
Defense, Ms. Kagan's predecessor, Robert

[[Page S6811]]

Clark, essentially capitulated and gave the military access to the
Office of Career Services in 2002. So Dean Robert Clark, Dean Kagan's
predecessor, rather than be denied Federal funds to Harvard by
violating the Solomon Amendment and denying access to military
recruiters to the Office of Career Services, decided in 2002 to change
Harvard's policy. Thus, when Ms. Kagan became dean of the law school in
the spring of 2003, the military had full access to the Office of
Career Services to recruit interested candidates for military service.
For a while, Dean Kagan maintained the military's access to the
Office of Career Services in compliance with the Solomon Amendment. But
it is clear that Dean Kagan did not like that because she voiced her
political opposition to the don't ask, don't tell policy--in other
words, the law enacted by Congress and to which the Department of
Defense was accountable for enforcing--in an e-mail she sent to all of
Harvard's law students saying that she ``abhorred'' the ``don't ask,
don't tell policy'' and she considered it ``a moral injustice of the
first order.''
In January 2004, Dean Kagan joined 53 other members of the Harvard
law faculty in filing a friend of the court brief supporting a
challenge to the Solomon Amendment in the Third Circuit Court of
Appeals. So even though she maintained access for a while, inherited
that policy under her predecessor, in 2004, when a lawsuit was filed to
challenge the Solomon Amendment, Dean Kagan and other Harvard Law
School faculty joined in a friend of the court brief to try to strike
down the Solomon Amendment.
In November of 2004, a split panel on the Third Circuit Court of
Appeals actually held that the Solomon Amendment was reasonably likely
to be unconstitutional and sent the case back to the district court
with instructions to issue an injunction halting the Solomon
Amendment's enforcement.
Now, this is very important because the Third Circuit is one of our
circuit courts of appeal in the United States, but it is not the U.S.
Supreme Court. By that I mean when it makes a decision, its decision
only applies to the territory or that part of the United States that is
within the Third Circuit. That is important because Harvard is not in
the Third Circuit. Harvard is in the First Circuit. So in effect, the
Third Circuit panel's decision had no legal effect on Harvard Law
School.
Nevertheless, the very next day, after the Third Circuit issued its
decision, Dean Kagan changed the Harvard Law School policy to once
again bar the military from using the services of the Office of Career
Services. In other words, she was not compelled to do so by law but
exercising her discretion as dean, she chose to reinstate this policy
of barring military recruiters from the Office of Career Services.
Then, in January of 2005, the Third Circuit issued an order staying
its enforcement pending a decision by the U.S. Supreme Court. After
this, of course, the Third Circuit ruling did not even have any effect
even in the Third Circuit, much less in the jurisdiction in the circuit
with jurisdiction over Harvard. But even after the order was stayed,
Ms. Kagan continued the policy of barring military recruiters from the
Office of Career Services.
While her policy barring military recruiters from the Office of
Career Services was in effect, Dean Kagan approached the Harvard Law
School Veterans Association and asked them to serve as an alternate
channel for military recruiting at Harvard Law School. In 2005, the law
school veterans declined, writing:

Given our tiny membership, meager budget, and lack of any
office space, we possess neither the time nor the resources
to routinely schedule campus rooms or advertise extensively
for outside organizations, as is the norm for most recruiting
events.

In short, the law school veterans told Dean Kagan that the separate
access she wanted them to offer the military would not be equal because
they didn't have the ability to match the resources of the Office of
Career Services.
In May 2005, the Supreme Court of the United States then said they
were going to hear an appeal of the Third Circuit's decision, and they
granted the writ of certiorari to the Defense Department's appeal of
that case to review their finding on the Solomon Amendment. Over the
summer of 2005, the Defense Department notified Dean Kagan that it
would rescind Harvard's funding--in other words, it would deny Federal
funding to Harvard pursuant to the Solomon Amendment--if she continued
to deny the military access to the Office of Career Services.
Faced with this ultimatum, on September 20, 2005, Dean Kagan finally
ended her 10-month unlawful denial of access and announced that pending
the Supreme Court's decision she would lift the ban and give the
military access to the Office of Career Services. But in the meantime,
she filed another friend of the court brief, this time in the Supreme
Court of the United States, arguing the Solomon Amendment should not
apply to her actions barring the military from the Harvard Law School's
Office of Career Services.
Ultimately, the Supreme Court unanimously rejected Dean Kagan's
position and unanimously upheld the Solomon Amendment.
To recap: Dean Kagan's ban on military recruiters lasted for 10
months--from November of 2004 through September of 2005. During that
entire span of time, the Department of Defense position was always--was
always--that the ban violated the congressionally passed Solomon
Amendment. Never in that span of time did the Supreme Court, the First
Circuit, or any other court with jurisdiction over Harvard adopt Dean
Kagan's view regarding the scope or enforceability of the Solomon
Amendment. In that span of time, only a split panel of the Third
Circuit held that the Solomon Amendment was unenforceable, and for all
but 2 months of that time, the Third Circuit's order was stayed.

Despite all of this, Dean Kagan persisted in barring military
recruiters from the Office of Career Services and insisted that the
military could obtain separate but equal access to Harvard Law School
through alternate routes. Dean Kagan held that the Supreme Court's
position ran afoul of the Solomon Amendment, the findings of the
Secretary of Defense, and ultimately the legal judgment of the entire
Supreme Court. I believe these are the undisputed facts of the case.
So why do Ms. Kagan's actions matter? I would argue that they matter
for two reasons. First is the message her actions sent about her lack
of respect for the U.S. military at Harvard Law School during her
deanship. Ms. Kagan claims she holds the military in the highest
respect, but I have to ask you, this notion that you are going to
provide separate but equal access to interviewing services is not one
that shows respect. It is one that provides an unnecessary and really
reprehensible stigma on the U.S. military, which had no control over a
policy passed by Congress under the Solomon Amendment.
Of course, she did this at a time when hundreds of thousands of young
men and women deployed to Iraq and Afghanistan were wearing the uniform
of their country to protect their fellow citizens and the rule of law.
Dean Kagan's actions in taking every step legally possible to relegate
the military to what she herself believed was separate but equal status
placed an unmistakable stigma on the military during a time of war.
I believe her decision to stigmatize the military is reason enough to
oppose her nomination to a lifetime seat on the U.S. Supreme Court, but
her actions as dean are troubling for another reason as well. I believe
her actions as dean indicate strong evidence that, as a Justice,
someone sitting in judgment on the U.S. Supreme Court, she would tend
to advance her political preferences rather than take a traditional
approach of a judge in following the law.
Many of our colleagues have pointed out correctly that Ms. Kagan has
never been a judge. While that is not a requirement to serve on the
Supreme Court, this lack of judicial experience makes it difficult to
tell whether Ms. Kagan would adopt a judicial activist philosophy if
she takes a seat on the Court. Because she has never held the job of a
judge--we don't have any record to judge her by--we must look to the
jobs she has held and the actions she has taken to see how she is
likely to perform her job as a member of the U.S. Supreme Court.
In the 10 months during which she banned the U.S. military from the
Harvard Law School campus, I believe Dean Kagan showed a willingness to

[[Page S6812]]

bend the law and facts to advance her own political goals of protesting
the don't ask, don't tell policy and, as I said, stigmatizing the
military in the process. Despite the lack of any binding authority, she
adopted an interpretation of the Solomon Amendment so tenuous that it
could not garner the vote of a single Justice on the U.S. Supreme
Court, and she did so for the express purpose of advancing her
objections to a policy she said she abhorred.
Bending the law and the facts to reach a preferred result is exactly
what judicial activists do, and there is a pattern in Ms. Kagan's legal
career of bending the law and facts to advance her preferred policy
results. So while Ms. Kagan has never been a judge, she has established
a disturbing pattern of doing what judicial activists do. Ms. Kagan's
actions in her previous jobs showed she is very likely not to embrace
the role of a judge who decides cases based on the Constitution as
written and the law as passed by Congress that she is responsible for
enforcing if they are, in fact, constitutional but, rather, she gives
every indication of someone who believes it is within her role and
prerogative as a Justice to basically make the law rather than to
enforce the law as written. No Member of this Chamber should be
surprised if, for the rest of her life as a Supreme Court Justice, Ms.
Kagan does not merely follow the law as written but, rather, bends the
law to advance her progressive political agenda.
Our Constitution is too precious and the Supreme Court is too
powerful for us to accept without question a President's nominee to the
Supreme Court. The Framers of the Constitution recognized the
importance of this appointment and the power given to a Supreme Court
Justice, who serves for life without any political accountability to
the electorate. That is why they gave us the responsibility to give our
advice and consent.
The nomination and confirmation of a Supreme Court Justice is really
a two-step process. First, the President makes his nomination. The
President can nominate anyone the President wants who meets the
qualifications of the Constitution. But then it is our responsibility
to exercise our constitutional duty to provide advice and consent.
I believe Ms. Kagan has failed to embrace the traditional view of
judging that I believe all judges must adhere to at the risk of,
rather, them becoming a lawmaker, which is incompatible with the role
of a Justice. I believe a judge who assumes a role of being a
policymaker or a lawmaker is, in essence, a lawbreaker.
Indeed, Ms. Kagan's career up to this point shows a willingness to
bend the law and the facts to advance her own beliefs, and I fear this
trend will continue in an activist tenure on the Supreme Court. For
these reasons, I oppose her nomination and will vote no.
Mr. BENNET. Mr. President, I rise in strong support of the
President's nomination of Solicitor General Elena Kagan to be Associate
Justice of the U.S. Supreme Court.
The Senate has no more important responsibility than to advise and
consent on nominations to our Nation's highest Court. It will be an
honor on behalf of the people of my State to cast my vote to confirm
Elena Kagan.
Ms. Kagan is a distinguished lawyer with a remarkable legal
background. She brings very diverse experiences to the Court that I
believe will add to the important perspective of the high Court as it
reviews cases of critical importance to the American people.
Throughout her career she has been a legal trailblazer and a role
model. She will be the fourth woman to serve on the high Court, and for
the first time in history, three women will be serving on the bench
when oral arguments are heard this fall. Her nomination marks an
historic milestone of progress for women in the legal profession and in
serving as leaders for our Nation.
A graduate of Harvard Law School, Ms. Kagan began her career as a law
clerk to former Supreme Court Justice Thurgood Marshall, who like her,
served as Solicitor General prior to being promoted to the high Court.
Justice Marshall made history as the first African-American Solicitor
General at the time and Ms. Kagan has followed suit as the first female
Solicitor General.
Following her clerkship, Ms. Kagan worked in the private sector where
she handled first amendment, commercial and criminal litigation. She
then served in the highest ranks of academia as a law professor. This
ultimately led to her becoming dean at the Harvard Law School, one of
our nation's most prestigious institutions. Her ascension to dean
marked the first time in Harvard Law School's 186-year history that a
woman held this position. As dean, Ms. Kagan bridged ideological
divides among faculty, recruiting professors from across the
ideological spectrum, managing the largest and most prestigious law
school in our nation and improving the quality of life for students.
Prior to becoming dean, Ms. Kagan served in high legal and policy
positions in the Clinton administration, where she learned the
operations of the executive and legislative branches of our government,
which will help the Court better understand how policy judgments are
made and the effect that the decisions of our government and courts
have on the lives of everyday Americans.
Most recently, Ms. Kagan has dutifully served our Nation as the U.S.
Solicitor General. The Solicitor General is often referred to as the
10th Justice because of the frequency that he or she appears before the
Court on behalf of the United States. This experience exposed Ms. Kagan
to nearly every case that has come before the current Court and she has
had to weigh all of the same legal considerations as the current
Justices prior to deciding the position of the U.S. Government. Few
positions provide better preparation for the high Court.
While she has not previously served as a judge, though she was
previously nominated to be one, I see her varied background as an
asset. We need different life experiences on the Supreme Court. If
confirmed, Ms. Kagan will be the first nonjudge since former Chief
Justice William Rehnquist was nominated by former President Richard
Nixon.
Her mix of professional experience will help ensure that we do not
have a Court out of touch with the American people. Ms. Kagan has
taught the law in the classroom, practiced in the public and private
sector, worked in the judiciary as a clerk and crafted the policies of
the executive branch. Everywhere she has worked, Ms. Kagan has
excelled. Her experience is the kind of experience we should aspire for
all of our justices to have before serving on the high Court.
The Supreme Court is too important to not hold our justices to high
standards of intellect and achievement--a standard Ms. Kagan meets. It
is our best and brightest who should serve in these important
positions. We need Justices who respect precedent, hew closely to the
text of the law and do not pursue an agenda from the bench.
We do not need activist judges whether they come from the right or
left. The American people do not want an ideologically driven Supreme
Court that is pursuing a political agenda. We want a Court that
respects precedent and helps resolve the legal questions of our time as
they affect our daily lives.
I would like to close by thanking outgoing Justice John Paul Stevens
for his service to our country. Justice Stevens presided on the Court
during a period of great change and accomplishment for our nation. He
is a member of the Greatest Generation and is a true patriot for his
service during World War II. Justice Stevens has been an intellectual
heavyweight on the bench and provided a voice of reason even while we
have seen the Court drift so heavily in favor of the most powerful
interests. He has left large shoes to fill and will be missed.
President Obama has nominated someone who can fill these shoes.
Because of the breadth and diversity of her experience, Elena Kagan has
a profound understanding of the law and effect the Supreme Court has on
the lives of all Americans. She is an intellectual heavyweight in her
own right and will help the Court bridge the divides of recent years.
I am proud to commit my vote in favor of this nominee.
Mr. HARKIN. Mr. President, I am proud to support the confirmation of
Solicitor General Elena Kagan as the next Associate Justice of the
United States.
Solicitor General Kagan is eminently qualified to serve on our
Nation's highest Court. As a student, she excelled at

[[Page S6813]]

Princeton, Oxford and Harvard Law School. She has stellar legal
credentials that have been recognized by liberal and conservative
lawyers alike. And, throughout her career, including as a professor of
law, as a key advisor to President Clinton, as dean of Harvard Law
School, and as Solicitor General, she has demonstrated a great mind and
intellect.
Moreover, Solicitor General Kagan will bring important diversity to
the Court. First, when the Senate confirms her, she will be only the
fourth woman to serve on the Court; and for the first time in history,
three women will serve on the Supreme Court together.
Second, Solicitor General Kagan's experiences as someone who has
worked in the legislative and executive branches will provide a vital
perspective that is currently lacking among the Justices. In fact, for
the first time in history, the current Court is comprised entirely of
Justices who were promoted directly from the lower Federal courts.
While judicial experience is important, it is also important to
recognize that some of our most consequential Justices--Louis Brandeis,
Felix Frankfurter, Earl Warren, Robert Jackson and William Rehnquist,
to name just a few--did not have prior judicial experience. I am glad
the President recognized how crucial it is to have on the bench
Justices with varied life experiences.
Mind you, I am hopeful that next time the President will look to one
of the many qualified lawyers who did not graduate from Harvard or
Yale, or one who resides east of the Appalachian Mountains. But
nominating someone from outside the Federal courts is a refreshing
change.
As I evaluate Solicitor General Kagan's qualifications, an additional
factor is important for me: she clerked and learned from two judges for
whom I have enormous respect--Judge Abner Mikva and Justice Thurgood
Marshall. These two jurists exhibited a deep and abiding passion for
justice, and each strived throughout his career to ensure that ``equal
justice under law'' is more than an ideal chiseled on a marble facade,
but a concrete reality for all our citizens.
In her opening statement before the Judiciary Committee, Solicitor
General Kagan noted:

My first real exposure to the Court came almost a quarter
century ago when I began my clerkship with Justice Thurgood
Marshall. Justice Marshall revered the Court--and for a
simple reason. In his life, in his great struggle for racial
justice, the Supreme Court stood as the part of government
that was most open to every American--and that most often
fulfilled our Constitution's promise of treating all persons
with equal respect, equal care, and equal attention.

In a 1993 law review article, she expressed a fondness for Justice
Thurgood Marshall's vision of constitutional interpretation, which she
described as ``demand[ing] that the courts show a special solicitude
for the despised and disadvantaged.'' She described this vision as ``a
thing of glory.'' I am hopeful that Solicitor General Kagan will follow
in the best traditions of Judge Mikva and Justice Marshall and continue
to strive to make our Nation's laws more just.
Considering her outstanding intellect and credentials, there simply
is no doubt Solicitor General Kagan should be confirmed.
However, for me, there is another, equally important, consideration.
I also believe that Solicitor General Kagan will be an important and
needed voice on the Court to ensure that appropriate respect and
deference is given to Congress, and proper effect is given to our most
important statutes, such as the Americans with Disabilities Act, the
Civil Rights Act, and the Age Discrimination in Employment Act, so all
Americans receive the fullest protections of the law.
Too often debate regarding the Supreme Court seems to focus on a
handful of divisive cultural issues. Indeed, many of my colleagues on
the other side of the aisle have come to the floor to focus on gays in
the military, abortion and guns. To be sure, these issues are
important. But, what typically get overlooked in a debate like this are
the many technical, statutory cases--often involving esoteric legal
principles--that nonetheless have a tremendous impact on the everyday
lives of ordinary Americans.
Unfortunately, the sad truth is that, in case after case, often in
narrow 5-4 decisions, today's Court has too often slammed shut the
courthouse door in the face of these ordinary Americans. The Court has
used arcane legal doctrines and strained readings of Federal statutes
to prevent citizens from vindicating their civil rights and consumer
protections. The result is that many people who suffer grievous wrongs
are not able to bring meritorious lawsuits, and to hold corporations
and the government accountable.
In case after case, the Court has undermined vital protections and
sided with the powerful against the powerless--for instance, in cases
such as Ledbetter v. Goodyear, Gross v. FBL Financial, and Riegel v.
Medtronic. In doing so, the Court has repeatedly ignored the clear
intent of Congress in passing important laws.
In the ``Sutton trilogy'' the Court repeatedly misread the Americans
with Disabilities Act and narrowed the scope of individuals deemed
eligible for protection under that landmark statute. The result of
these decisions was to eliminate protection for countless thousands of
Americans with disabilities. These flawed, harmful decisions were
reversed in the last Congress when we unanimously enacted the ADA
Amendments Act.
Similarly, in June, 2009, the Supreme Court decided Gross v. FBL
Financial, Inc. In a case involving an Iowan, Jack Gross, the Court
made it harder for those with legitimate age discrimination claims to
prevail under the Age Discrimination in Employment Act. In doing so, it
reversed a well established, 20-year-old standard, consistent with that
under title VII of the Civil Rights Act, that a plaintiff need only
show that membership in a protected class was a ``motivating factor''
in an employer's action. Instead, the Court held that a plaintiff
alleging age discrimination must prove that an employment action would
not have been taken against him or her ``but for'' age. In other words,
the plaintiff must now prove that age discrimination was not a cause or
a motivating factor, but that it was the determinative cause of an
adverse employment action. Proving ``but for'' cause is extremely
difficult and will greatly limit potentially meritorious suits
involving discrimination Congress sought to prevent.
In doing so, the Court did not even address the question on which it
granted certiorari. As Justice Stevens noted in dissent, ``I disagree
not only with the Court's interpretation of the statute, but also with
its decision to engage in unnecessary lawmaking. The Court is
unconcerned that the question it chooses to answer has not been briefed
by the parties or uninterested amici curie. Its failure to consider the
views of the United States, which represents the agency charged with
administering the [Age Discrimination in Employment Act], is especially
irresponsible.''
In University of Alabama v. Garrett, a case whose oral arguments I
personally attended, the Court limited the rights of people with
disabilities. In doing so, it ignored numerous congressional hearings
and a task force which collected evidence through 63 public forums
around the country attended by more than 7,000 persons. In United
States v. Morrison and Kimel v. Florida Board of Regents, the Court
completely ignored extensive congressional fact-finding and struck down
parts of the Violence Against Women's Act and the Age Discrimination in
Employment Act, respectively.
The contrast with Solicitor General Kagan is stark. She repeatedly
made clear her approach to judging: respect for congressional intent
and for long standing precedent. She consistently made clear that a
judge's personal views should play no role in interpreting a statute
and ``the only question is Congress's intent.'' Unlike some current
members of the Court, moreover, she made clear that where the text of a
statute is ambiguous she will look to legislative history--``a judge
should look to other sources, should look to the structure of the
statute, should look to the history of the statute in order to
determine Congress's will.'' After her confirmation hearing and based
on my personal meeting with her, I am convinced she will give full
effect to our most important statutes.
Finally, as I listen to the debate surrounding Solicitor General
Kagan's confirmation, I find it remarkable that conservatives continue
to accuse every

[[Page S6814]]

Democratic appointed nominee of being ``activist.'' It is a tired
bumper sticker slogan that not only has no meaning but is divorced from
reality.
In fact, what is clear from this debate is that it is the
conservatives who want to use the courts to achieve a desired political
result and to thwart the democratic will of the people, as expressed
through their elected representatives.
For example, the ranking member of the Judiciary Committee, Senator
Sessions, noted his concern that Solicitor General Kagan ``will bring
to the bench a progressive activist judicial philosophy which holds
that unelected judges are empowered to set national policy from the
bench.''
I find it ironic that this charge is bandied about by the same people
most eager to have the courts strike down as unconstitutional the
recently enacted health care reform bill. To strike down this law would
require an unelected judge to ignore the clear language of the
Constitution, reverse precedents that go back to John Marshall,
disregard extensive fact-finding by Congress, and overturn a decision
of a majority of both Houses of Congress and the President of the
United States. That would be the height of judicial activism, the
height of ``making national policy from the bench.''
The reality, is that, the Rehnquist and Roberts Courts have
invalidated more laws than any previous Courts.
It is conservatives who not only want the Court to make national
health care policy, but also to limit the ability of Congress to keep
the corrupting influence of corporate spending out of our democracy, as
the Court did in Citizens United.
It is conservatives who second guess decisions by Congress, including
a unanimous Senate, to ensure the rights of all Americans to vote, as
the Roberts Court suggested in Northwest Austin Municipal Utility
District No. One v. Holder.
It is conservatives who want the judiciary to second guess decisions
made by local sheriffs in keeping guns out of the hands of criminals.
It is conservatives who want the judiciary to second guess local
zoning decisions, environmental and land use regulations.
It is conservatives who want the courts to invalidate efforts by
Congress and local governments to eliminate racial discrimination.
Given the current Court's repeated disregard for Congress and for our
efforts to expansively protect American citizens, I believe it is
imperative that the next justice be someone who respects precedent,
strives to apply congressional intent and purpose, and understands the
importance of this nation's landmark civil rights protections. Based on
her record and after meeting her, I am confident Solicitor General
Kagan will be that type of jurist.
Solicitor General Kagan clearly has the intellect, experience and
judgment to be an outstanding Justice. I am proud to support her
nomination.
Mr. FEINGOLD. Mr. President, I want to speak briefly about the
nomination of Elena Kagan to be an Associate Justice of the U.S.
Supreme Court.
First, I commend the chairman of the Judiciary Committee and his
staff for their efforts to make this confirmation process so thorough
and transparent. The committee had the opportunity to review nearly
200,000 pages of internal memos and emails from Ms. Kagan's service as
a law clerk to Justice Thurgood Marshall and as a White House aide
during the Clinton administration--making the examination of her record
one of the most thorough and searching in history. I appreciate that
President Obama and President Clinton did not raise claims of executive
privilege to try to stop the release of documents, which was a
refreshing change and a practice that I hope future Presidents will
follow in years to come.
All but a tiny fraction of these documents were made available
online, granting extraordinary access to the public. I said after last
year's hearings for Justice Sotomayor that Chairman Leahy had set a new
standard for transparency and public access to Supreme Court nomination
hearings, and in these proceedings he did it again. I commend him and
his staff for their tremendous work over the past few months.
There is no question that Elena Kagan is eminently qualified for a
position on the Supreme Court. She has an impressive education, she has
worked at the highest levels of government, and she has served as dean
of a top law school. During the hearings, she demonstrated a keen mind,
thoughtful analysis, and a wide-ranging command of the law. She has
developed a reputation as someone who can reach out to those with whom
she may not agree and work together, and that skill should prove very
valuable on the Court. I believe that because she has not previously
been a judge, she will bring a different and important perspective to a
Court that is otherwise entirely populated by former appellate judges.
I appreciated Solicitor General Kagan's efforts to improve the
confirmation process by being forthcoming in her answers. Fifteen years
ago she quite fairly criticized the process in an article, arguing that
the American people deserved more substantive discussions of the law.
While I can't say that she quite lived up to the high standard that she
set for nominees in 1995, I do believe that she tried to answer our
questions as openly and comprehensively as she could, given what the
confirmation process has become.
I came away from the confirmation process convinced that Elena Kagan
understands the appropriate relationship between the courts and
Congress. As she explained at the Judiciary Committee hearing, her work
with Congress during her time at the White House taught her a healthy
respect for the political branches and how difficult it can be for
Congress to pass legislation. I hope that she will keep this in mind
before she votes to overturn a bill that Congress may have spent years
drafting and debating.
But while this deference is important, Solicitor General Kagan also
demonstrated that she recognizes the critically important role of our
judicial system in serving as a check on the other branches of
government--in ``policing constitutional boundaries,'' as she put it.
She spoke eloquently about the early experiences of Justice Marshall
and his efforts to eradicate Jim Crow laws and racial segregation. She
explained that what was so incredible about his struggle for equality
was that ``the courts [took] seriously claims that were not taken
seriously anyplace else. . . . In other words, it was the courts' role
to make sure that even when people have no place else to go that they
can come to the courts and the courts will hear their claims fairly.''
She said this was a miraculous thing about courts, and I agree with
her. With regard to executive power, she emphasized that ``no person,
however grand, however powerful, is above the law.'' She also talked
about ``the importance of adhering to the law, no matter the
temptations, no matter the pressures that one might be subject to in
the course of one's career.'' These insights indicate that she will
take seriously the Court's role in safeguarding individual rights and
protecting the rule of law.
In addition to informing the committee about the nominee, the
hearings also taught us more about the Supreme Court. We have heard a
lot in recent years about ``judicial activism.'' But I think the
hearings helped underscore that activism is in the eye of the beholder.
As Justice Souter explained in a recent speech, the truth is that the
Supreme Court has to decide hard cases--cases in which a judge cannot
simply read the words of the Constitution and objectively evaluate the
facts. That is, a judge cannot simply act as an umpire. Judges often
have to choose between positive values in the Constitution that are in
tension with each other, he noted.
Justice Souter reminded us that facts may look very different in
different historical contexts. The quintessential example of this is
the Court's historic decision in Brown v. Board of Education to
overturn Plessy v. Ferguson--a case that by current standards would
surely qualify as judicial activism but that is one of the most revered
in our nation's history. What this shows us is that judging is not a
``robotic enterprise,'' as Solicitor General Kagan told the Senator
from Minnesota, Ms. Klobuchar. Judging is hard and it does, in fact,
require judgment. But, Justice Souter explained, ``we can still address
the constitutional

[[Page S6815]]

uncertainties the way [the Framers] must have envisioned, by relying on
reason, by respecting all the words the Framers wrote, by facing facts,
and by seeking to understand their meaning for living people.'' I
believe Elena Kagan will fulfill that vision admirably.
So I will vote to confirm Elena Kagan to be an Associate Justice of
the U.S. Supreme Court. I look forward to her confirmation as only the
fourth woman in history to serve on our Nation's highest Court, and I
expect she will serve with distinction--and with good humor, which she
demonstrated throughout this arduous process--for many years to come.
Mr. CONRAD. Mr. President, I rise today to express my support for the
confirmation of Elena Kagan to serve as the next Associate Justice of
the Supreme Court.
Having carefully examined her record, monitored her confirmation
hearings, and personally met with her, Solicitor General Kagan is
clearly qualified to serve on the Court. Given her tremendous
educational accomplishments at Princeton, Oxford, and Harvard, as well
as her success as a constitutional and administrative law scholar at
Chicago and Harvard, there is little question that she is
intellectually qualified for the job.
General Kagan has had an impressive career, having clerked for
Supreme Court Justice Thurgood Marshall, worked as the first female
dean of Harvard Law School, and served as the first female Solicitor
General of the United States. During that time, she has impressed all
with whom she has worked with both her character and her talent.
Some of my colleagues are concerned that previous Federal judicial
experience is not among her list of accomplishments. Historically,
however, large numbers of our Supreme Court nominees have not had prior
judicial experience. The last Supreme Court nominee appointed without
any such experience served was former Chief Justice William Rehnquist.
Indeed, the outgoing Court represents the first time in history when
all nine Justices had Federal judicial experience. That is what
prompted Justice Antonin Scalia to say that he was ``happy to see that
this latest nominee is not a federal judge.'' I share that view, and
welcome the unique academic perspective that General Kagan will bring
to the Court.
Others with concerns about General Kagan have pointed to her
treatment of military recruiters as the dean of Harvard Law School or
memos she wrote when she was an advisor in the Clinton administration.
In addition to the explanations provided to me by General Kagan during
our meeting, I am reassured about these controversies by the fact that
she has received strong support from legal minds across the political
spectrum.
General Kagan has earned high praise from conservatives like Jack
Goldsmith and Miguel Estrada, as well as from every former Solicitor
General since 1985, including Ted Olson and Ken Starr. These are not
people who make such endorsements lightly. They would not speak well of
someone who is outside the mainstream.
When considering my vote on nominees to the Supreme Court, my key
test is whether or not the President's nominee is qualified to serve on
the Court, not whether I agree with everything he or she have ever
done. As Senators, we must examine the record, accomplishments,
intellect, and character of each judicial nominee put before us, and
determine whether each individual is worthy to serve on the bench. This
is the standard I used when I voted to confirm Chief Justice John
Roberts, Justice Samuel Alito, and Justice Sonia Sotomayor. And that is
the standard I am using in voting to confirm Elena Kagan.
Mr. UDALL of New Mexico. Mr. President, I rise today to talk about
Solicitor General Kagan's experience. Over the past few months, there
has been a lot of talk from our friends across the aisle about whether
Ms. Kagan is qualified to be our country's 112th Supreme Court Justice.
They say she has never been a judge. How conveniently they forget
that some of the most well-respected Justices in the history of the
Supreme Court also brought life experiences outside the ``judicial
monastery,'' which President Obama so ably encouraged us to look
beyond. Former Chief Justice William Rehnquist is one example. Former
Justice Lewis Powell, Jr., is another.
They also conveniently forget that just a few decades ago, most
Justices had little or no judicial experience. In fact, it is General
Kagan's diversity of life experiences that, in my opinion, make her
exceptionally qualified for the High Court. President Obama said one of
the primary reasons he nominated General Kagan was because of her
``understanding of law--not as an intellectual exercise or words on a
page--but as it affects the lives of ordinary people.'' I couldn't
agree more.
The inscription that greets visitors to the Supreme Court building
just across the street reads: ``Equal Justice Under Law.'' That
inscription is at the heart of the experience General Kagan would bring
as the newest member of the High Court.
That experience includes a reputation as one of the Nation's foremost
legal minds; as a legal advisor to two Presidents; as the first woman
to serve as Dean of Harvard Law School; and as the Nation's first
female solicitor general.
It also includes more personal experiences, many of which mirror the
lives of the American people she has committed her own life to serve.
She is the child of immigrants. She is the daughter and sister of
public schoolteachers, and she has been a teacher herself. She is an
advocate for her students. And she is a proponent of discussion and
debate that educates, respects and improves upon the lives of all it
impacts.
It is because of all of these experiences--as President Obama said on
the day he introduced her--that General Kagan will make the Nation's
highest Court ``more inclusive, more representative, more reflective of
us as a people than ever before.''
I am confident that Solicitor General Kagan has the experience that
will make her a stellar Justice, and I look forward to casting my vote
in favor of her confirmation to the Supreme Court.
Mrs. LINCOLN. Mr. President, I come here today to discuss one of the
most important duties we exercise as Senators the confirmation of a
United States Supreme Court Justice.
As a U.S. Senator, I have a responsibility under the Constitution to
determine if nominees to the Supreme Court are qualified for the job.
In making this determination, I consider a nominee's knowledge of the
Constitution and the law as well as their ability to be deliberate and
to hear every case that comes before them impartially and without
personal bias.
I believe Ms. Kagan passes that test and that she is qualified to
serve on the U.S. Supreme Court.
I have made this decision after carefully reviewing the Judiciary
Committee record on her nomination and visiting with Ms. Kagan
personally on two occasions to discuss her nomination. I was impressed
with her knowledge, humility, and candidness, and I believe she was as
forthcoming in our conversations as any individual whose Supreme Court
nomination I have considered.
As Solicitor General for the United States, Elena Kagan served as the
Federal Government's lawyer in chief, representing all Americans,
including Arkansans, before the U.S. Supreme Court.
A passion for public service and the law has been the driving force
behind her career. Elena Kagan is the first woman to serve as Solicitor
General, and the first woman to serve as the Dean of Harvard Law
School. She previously worked in the Clinton White House as Deputy
Assistant to the President for Domestic Policy and as Associate Counsel
to the President. She spent several years in private practice after
serving as a law clerk for the U.S. Court of Appeals for the District
of Columbia, and for Justice Thurgood Marshall on the U.S. Supreme
Court.
I believe the fact that Elena Kagan has not worked as a judge will
benefit the Court. She will bring a fresh voice and unique perspective
to the discussion on cases that come before the Court. There is already
a persuasive precedent for a nominee with no judicial experience to
serve on the U.S. Supreme Court. In fact, 41 Supreme Court justices,
including Chief Justice William Rehnquist, had no experience

[[Page S6816]]

serving on a lower federal or state court. And many former justices who
also did not previously work in the judicial branch have similar
backgrounds to that of Solicitor General Kagan.
Since Ms. Kagan was nominated for this position in May, I have heard
from many Arkansans both for and against her confirmation. In terms of
the concerns that have been raised by those who oppose her
confirmation, I have examined her record regarding those issues and
have spoken to the nominee on two occasions to discuss those matters
further. After careful thought and consideration in fulfilling my
responsibility to judge her fitnesss for this position, I have found
nothing that I believe disqualifies her from being confirmed.
There is no doubt Elena Kagan holds the Constitution and the Court's
precedents in high regard. During her nomination hearings, Elena Kagan
responded to numerous questions about a variety of issues. In response
to one question regarding recent Supreme Court rulings involving the
Second Amendment, she stated, ``there is no question that the Second
Amendment guarantees Americans the individual right to possess and
carry weapons in case of confrontation.'' Further, General Kagan
explicitly said that the recent Heller and McDonald decisions that
secure a fundamental and individual right to own a firearm for self
protection is ``settled law.'' Ms. Kagan has personally assured me she
has no desire or intention of working to overturn either decision.
It is true Ms. Kagan has not promised how she would decide future
Second Amendment cases that may come before the Court. Neither Justice
Roberts nor Justice Alito made any pledges or promises in that regard
either during their confirmation hearings. To do so would betray one of
the basic foundations of our system of government which is a fair
minded and independent judiciary. Further, after reviewing the
Judiciary Committee hearing record for Ms. Kagan, Justice Roberts and
Justice Alito, in my view Ms. Kagan was as, if not more, forthcoming
regarding her views on the Second Amendment than the two most recent
nominees made by a Republican President.
One final comment General Kagan made to me during our last
conversation about the Second Amendment was her desire to join Justice
Scalia on one of his hunting trips to get better acquainted with her
colleagues on the Court if she is confirmed. Sounds like a good idea to
me.
Elena Kagan has also shared with me her deep respect and honor for
the military and the men and women in uniform who risk their lives to
defend our freedoms. Her father was a veteran, and she has taken with
her the reverence for the military he instilled in her. In 2007, Elena
Kagan was invited to speak at West Point military academy, where she
spoke to cadets about fidelity to the Constitution and the rule of law.
General Kagan said she accepted this invitation, something she rarely
does, as an opportunity to thank the senior cadets for their
contributions and service to our country.
Both in our personal conversations and in her testimony before the
Senate Judiciary Committee, Ms. Kagan has explained her actions as Dean
of Harvard Law School regarding military recruiting.
The bottom line for me is that Elena Kagan never denied military
recruiters access to students on campus and that she holds the men and
women in uniform who fight to defend the freedoms we cherish as
Americans in high regard. Evidence of this is supported by military
veterans themselves associated with the law school who have spoken
favorably of Ms. Kagan's treatment of students in the military and the
military in general. A group of Harvard Law School Iraq War Veterans
published a letter stating that Kagan, ``has created an environment
that is highly supportive of students who have served in the
military.''
It is also worth noting that Solicitor General Kagan is supported by
a long and distinguished list of law associations, organizations,
members of Republican and Democratic administrations, unions, advocates
and professionals. The list of supporters even includes every former
Solicitor General since 1985, including Ted Olsen and Ken Starr.
As I have said with previous Supreme Court nominees selected by two
different Presidents, I won't agree with every decision that he or she
makes. However, the standard for evaluating Supreme Court nominees
should be whether he or she is qualified for the job and is prepared to
place the law and the integrity of our Constitution ahead of any
personal or political beliefs he or she may have. I believe Ms. Kagan
meets that standard which is why I will support her confirmation.
Mr. WYDEN. Mr. President, I rise in support of the nomination of
Solicitor General Elena Kagan to serve as Associate Justice of the
United States Supreme Court. A lifetime appointment to the highest
Court in the land is a serious matter, and confirming each Justice is
one of the most solemn duties of any Senator.
When I sat down with her, I was struck by Ms. Kagan's obvious
intelligence and candor. It was also obvious that her wealth of
professional experience has given her a real reverence for our
country's rule of law. As the confirmation process went on, I paid
close attention to the answers Ms. Kagan gave to my colleagues on the
Judiciary Committee in her hearing. What comes across loud and clear
when one listens to Ms. Kagan is that she has a strong belief in the
Constitution and an understanding of its purpose to serve and protect
the American people.
Throughout the arduous process of being a Supreme Court nominee, Ms.
Kagan has impressed me at every turn with her intellect, integrity, and
independence. These are fundamental traits our Nation needs in every
member of the highest Court in the land.
But being a Supreme Court Justice requires more than surviving the
confirmation process. If confirmed, Ms. Kagan would be ruling on the
most important and urgent matters facing our Nation. Her voice would
carry with it the rich and varied background of professional experience
that would sound a note of true intellectual independence.
Although some have found fault with the fact that she has never
served as a judge, I have never believed that lack of prior judicial
experience should stop someone from serving with distinction on the
Court. After all, some of our greatest jurists had no experience as a
judge--Justices John Marshall, Louis Brandeis, Felix Frankfurter, and
William Rehnquist among them. In place of that singular legal
experience, Ms. Kagan brings expertise that she has earned in all three
branches of government, as well as the private sector as an attorney in
private practice and as the dean of Harvard Law School.
In talking with Ms. Kagan, I came away confident that she well
understands the proper role of a judge and will not attempt to
legislate from the bench. I discussed with Ms. Kagan her views and
approach to some of the important issues the Court will address in
upcoming years, such as national security, the limits of executive
power, and the protection of civil liberties.
I also spoke with Ms. Kagan about an issue of particular concern to
Oregonians one which they have endorsed twice at the ballot box--the
right to control end-of-life decisions. Oregon voters twice approved
death with dignity ballot measures. I have long believed that their
decision should be respected by the courts, and I am pleased the
Supreme Court has agreed with that view. While not taking a position on
specific questions that could come before the Court, Ms. Kagan
reassured me that she sees this as Oregonians do. She believes end-of-
life decisions are protected by constitutional privacy rights, and she
believes the Federal Government should not contravene State laws that
protect individual rights on this issue.
Finally, I was also comfortable with the way Ms. Kagan explained her
views on a frequently litigated constitutional issue, the limits of
congressional power to act under the commerce clause. Ms. Kagan's
answers assured me she has a very thorough and nuanced understanding of
commerce clause jurisprudence and that she will rule on commerce
authority cases with both deference and wisdom.
I am convinced, based on everything I have heard, that Ms. Kagan
possesses the intellect, integrity, and independence to serve as an
extraordinary Justice on the Supreme Court. With the retirement of
Justice Stevens, Ms. Kagan certainly has large shoes to fill.

[[Page S6817]]

But I have no doubt she is more than up to the task, and our country's
laws will be safely guarded in her hands. That is why Elena Kagan has
my support, and I will vote to confirm her as an Associate Justice of
the Supreme Court.
Mr. BEGICH. Mr. President, I am pleased to support the nomination of
Solicitor General Elena Kagan as Associate Justice on the U.S. Supreme
Court. By any objective standard, Elena Kagan offers a well-rounded
combination of academic legal expertise and real world application of
law and public policy. The President has nominated Ms. Kagan to a job
she may hold for three decades or more, and in which she will have the
opportunity to touch the lives of Americans in countless ways. So just
being an intelligent and hard-working public servant is not enough for
this vital position. That is why I have taken my time and my
responsibility seriously, to thoroughly review her record before
deciding to support her.
Decisions by the Supreme Court have immediate impacts on the lives of
everyday Americans when the rulings are handed down. These decisions
may continue to play a role in the lives of Americans for generations.
Considering my vote on a Supreme Court nominee, a task I will perform
soon for the second time in my brief Senate career, is a duty I take
very seriously.
I approach this decision from the perspective of a government chief
executive. It is the constitutional role of the President to nominate
Supreme Court justices. In the case of a nominee to the Federal courts,
especially to the Supreme Court, this choice is not about a President's
ability to carry out a stated agenda. Rather, justices on the highest
court in the land are there to protect and interpret the Constitution,
so the highest standards must be applied.
In my meeting with Solicitor General Kagan, I found her to be
intelligent and engaging, and open to hearing my thoughts on what is
important to Alaskans. I listened as Ms. Kagan described the way she
approached legal issues, and heard from her an approach to the law and
the Constitution that indicated she will not be an activist judge. I
agree with my colleague from South Carolina, Senator Lindsay Graham,
who said the job of a senator is not to second guess the President's
judgment in selecting Supreme Court nominees, but to determine if the
candidate is qualified, of good character and understands the
difference between being a judge and a politician. Ms. Kagan is such a
person.
For me as an Alaskan, there were some issues I needed to make front
and center in our discussion, especially the rights we enjoy and which
the Supreme Court has recently spoken to under the second amendment of
the Constitution.
Alaskans take their second amendment rights very seriously. In a
State where the daily life for many includes subsistence hunting,
personal protection and basic survival, our right to keep and bear arms
is not an academic question. It is a fundamental part of our lives. The
State of Alaska has gone so far as to pass laws requiring firearms be
kept in survival gear carried in private airplanes. Unlike much of the
``Lower 48,'' the wilderness in Alaska is reachable within minutes from
even our largest cities. Even in the greater Anchorage area encounters
with wildlife are commonplace and serious injuries occur regularly.
That is why firearm ownership and use in Alaska transcends the debates
in Washington over what the second amendment means.
Much of the opposition to Ms. Kagan's nomination has focused on what
some charged was her alleged lack of support for second amendment
rights. Some oppose Ms. Kagan's nomination because she worked for
Justice Thurgood Marshall and President Bill Clinton. When she was
asked by Judiciary Chairman Leahy if, after the Supreme Court's
decisions in Heller and McDonald that the second amendment secures an
individual's fundamental right to own a firearm and use it for self-
defense, Ms. Kagan's response could not have been more clear: ``There
is no doubt, Senator Leahy. That is binding precedent and entitled to
all respect to binding precedent in any case. That is settled law.''
Instead of second-guessing or making assumptions about her views, I am
taking Ms. Kagen at her word.
Even before the Court's decision in McDonald applied the reasoning of
Heller beyond the District of Columbia, Ms. Kagan was clear about the
fundamental nature of the rights protected by the Second Amendment.
During her confirmation hearing to be Solicitor General, Ms. Kagan
responded to a question about the meaning of Heller from Senator
Grassley: ``There is no question, after Heller, that the second
amendment guarantees Americans the individual right to possess and
carry weapons in case of confrontation.''' In subsequent questioning,
Ms. Kagan responded regarding Heller that she would give that decision
and its reasoning ``the full measure of respect that is due to all
constitutional decisions of the Court.''
What Elena Kagan said about the second amendment, especially in light
of the Heller and McDonald decisions that I supported, cannot be
considered anti-gun, or anti-second smendment.
In our meeting, I also asked Ms. Kagan about unique status of Alaska
Native people and issues. I pointed out that Alaska is home to nearly
half the 562 federal recognized tribes in the United States and that
Alaska Natives comprise nearly 20 percent of our State's population.
Ms. Kagan admitted to being no expert in ``Indian law,'' but expressed
a willingness to learn about the challenges and opportunities facing
Alaska Native people. She also expressed support for encouraging the
courts to adopt procedures making it easier for people whose first
language may not be English to understand court proceedings.
Another significant issue for Alaskans is the Supreme Court's
decision in the Exxon Valdez case. Thousands of Alaskans were damaged
by that oil spill, yet Exxon took every possible advantage in the U.S.
court system to delay payment of damages as long as they could. As a
result, an estimated 20 percent of those damaged by the spill died
before they could collect any compensation. Ms. Kagan agreed with the
tragedy of that case and expressed frustration with it dragging on so
long.
Mr. President, because of what I have learned in looking at the
career and record of Ms. Kagan, and reviewing her statements and
testimony on matters that are important to the people of Alaska I am
privileged to serve, I am pleased to confirm Elena Kagan as an
Associate Justice on the U.S. Supreme Court.
Ms. SNOWE. Mr. President, I rise today to speak to the nomination of
Solicitor General Elena Kagan to be the next Associate Justice of the
Supreme Court of the United States. After a careful and considered
review of her testimony before the Senate Judiciary Committee, her
overall record, and my personal meeting with her in May, I have
concluded that General Kagan should be confirmed as the next Associate
Justice of the Supreme Court.
General Kagan would succeed Justice John Paul Stevens who has served
our country as a decorated war veteran, a distinguished Federal
appellate judge, and a Supreme Court Justice for nearly 35 years. I
appreciate his service to our Nation, and believe that all of us in
public service can learn from his dignified manner and sound advice to
``understand before disagreeing.''
As with the previous nominees to the Court that I have had the
responsibility to review, I have not arrived at my decision lightly. It
has been said that, of all the entities in government, the Supreme
Court is the most closely identified with the Constitution--and that no
other branch or agency has as great an opportunity to speak directly to
the rational and moral side of the American character; to bring the
power and moral authority of government to bear directly upon the
citizenry.
The Supreme Court passes final legal judgment on the most profound
social issues of our time. The Court is uniquely designed to accept
only those cases that present a substantial and compelling question of
Federal law; cases for which the Court's ultimate resolution will not
be applied merely to a single, isolated dispute--but, rather, will
guide legislatures, executives, and all other courts in their broader
development and interpretation of law and policy. Ours is a government
of liberty and order, of State and Federal authority, and of checks and
balances, and the remarkable challenge of calibrating these fundamental
balance

[[Page S6818]]

points is entrusted ultimately to the nine Justices.
To help meet this extraordinary challenge, any nominee for the Court
must, as I stated for previous nominees under both Republican and
Democrat administrations, have a powerful intellect, a principled
understanding of the Court's role, and a sound commitment to judicial
method. A nominee must have the capacity to engender respect among the
other Justices in order to facilitate the consensus of a majority. And
to warrant Senate confirmation, the nominee must have a keen
understanding of, and a disciplined respect for, the great body of law
that precedes her.
It is with these high standards that we should also evaluate the
record of General Kagan to serve as the Court's 112th Justice. General
Kagan is a distinguished graduate from Princeton, Harvard, and Oxford
Universities where she earned several distinct honors. She served as a
law clerk to two judges, United States Court of Appeals Judge Abner
Mikva and United States Supreme Court Justice Thurgood Marshall.
General Kagan then worked in private practice as an associate at a
leading D.C. law firm and a law professor at two of the Nation's most
regarded law schools.
General Kagan has also served as a special counsel for the Senate
Judiciary Committee; a lawyer in the Office of the Counsel to a
President; a policy advisor to a President; and dean of the Harvard Law
School. Most importantly, she has served as the 45th Solicitor General
of the United States where she has participated in six oral arguments
and overseen briefs and certiorari petitions in approximately 100
cases.
For her work as Solicitor General, Ms. Kagan has won the support of
every one of the 10 Solicitors General who have served since 1985,
including 5 Republican appointees. She has also earned the support of
over 50 deputy and assistant solicitors general who have served over
the last 42 years.
As these highly skilled professionals have noted, the ``job of
Solicitor General provides an opportunity to grapple with almost the
full gamut of issues that come before the Supreme Court and requires an
understanding of the Court's approach to numerous issues from the
criteria for certiorari review to the Justices' approach to oral
argument. The constant interaction with the Supreme Court that comes
with being the most-frequent litigator before the Court also ensures an
appreciation for the rhythms and traditions of the Court and its
workload.''
Prior to her 15 months as Solicitor General, Ms. Kagan had relatively
little experience as an active practitioner. The American Bar
Association's principle expectation for a Federal appellate nominee is
``at least'' 12 years experience actually practicing law, and even now
she continues to fall short of that. This is due in part to the fact
that she does not appear to have performed any amicus curiae or pro
bono work while serving as a law professor.
Such practical experience often helps the Justices remain connected
to the effect of their decisions on the lives of everyday people. All
Supreme Court Justices, regardless of judicial philosophy, weigh the
Constitution's text, history, context and precedents when deciding the
landmark cases. Active practice of law experience helps with that
process because, as prior Justices and distinguished scholars alike
have observed, the Justices' decisions in landmark cases are inevitably
``channeled and constrained by who [they] are and what they have lived
through.''
General Kagan has not given us the clearest insight into those
experiences that she has ``lived through'' that will ``channel and
constrain'' her sense of constitutional boundaries. At the same time, I
find that her experience in working at the highest levels of all three
branches of government will provide her with valuable insights as she
approaches her work on the Court. I also accept her comments from our
personal meeting that she did indeed have a ``formative experience'' as
a young lawyer in learning that ``behind legal questions are real
people with real lives.''
As regards General Kagan's lack of prior judicial service, I do not
find that to be disqualifying. Nearly 40 Justices have served on the
Court without prior judicial experience, including in more recent times
Louis Brandeis, Hugo Black, Robert Jackson, Earl Warren, Lewis Powell,
and William Rehnquist. Especially on the current Court where all of the
existing members come from the Federal appellate courts, General Kagan
should bring a new and different perspective.
This brings us to the additional factors we must consider when
providing our consent on a President's nominee for Associate Justice--
judicial temperament, methodology, integrity and philosophy. By their
very nature, these attributes are often challenging to measure, but
they can be assessed through a careful analysis of a nominee's complete
record.
With regard to the first consideration, judicial temperament, we all
agree that it is absolutely essential that a judge be fair, open-minded
and respectful. Our citizens simply must have confidence that a judge
who weighs their legal claims does so with an even temperament. A judge
must be truly committed to providing a full and fair day in court,
while projecting a sincere equanimity and respect for the law. When
these attributes are not clearly present in our judges, the public
justifiably begins to lose faith in the integrity of our courts.
By all accounts, whether from conservative former Solicitors General
Ken Starr and Ted Olson, and Assistant Solicitor General Miguel
Estrada, General Kagan has a clear reputation for a sound judicial
temperament. She projected poise throughout this process, during her
hearing and in our personal meeting. Likewise, she has testified and
spoken about the necessity of courts to provide a ``level playing
field,'' of maintaining a fidelity to the law, and of the
essential requirement not to prejudge any case, stating during her
hearing that judging is about ``what the law says, whether it's the
Constitution or whether it's a statute . . . the question is always
what the law says . . . it's what the text of the Constitution says . .
. what the law says, not a judge's personal views.''

Turning to the considerations of judicial methodology and integrity,
General Kagan does not have a judicial service record to review. We
can, however, examine her scholarship. Here, she has six scholarly
articles, two scholarly book reviews and a variety of other
commentaries. I have some concern that this collection is, by
academia's standards, not especially prodigious, and that General Kagan
did not continue her scholarship during her six years as Harvard's
dean.
Her eight scholarly publications do, however, tackle the difficult
subjects of Presidential power, the delegation doctrine, and hate
speech. In particular, her Presidential Administration and Chevron's
Non-delegation Doctrine article from 2001, as well as The Changing
Faces of First Amendment Neutrality article from 1992, demonstrate both
close attention to complicated legal detail and careful legal
analysis--skills essential for the difficult work of the Court.
We can also review her approach to judicial methodology from her
answer to my request to identify three of the Court's constitutional
opinions--majority, concurring or dissenting--that in her view
exemplify sound judicial methodology. First, General Kagan chose
Justice Oliver Wendell Holmes' 1905 dissenting opinion in Lochner v.
New York. In that case, the Court invalidated a State law prohibiting
an employer from requiring a baker to work more than 60 hours per week.
The Court reasoned that the statute ``necessarily interferes with the
right of contract between the employer and employees,'' a right that is
``part of the liberty of the individual'' protected by the 14th
amendment.
General Kagan cited this opinion as a ``concise and persuasive
formulation of the proper role of the judiciary in relation to the
political branches of government,'' highlighting these passages:

I strongly believe that my agreement or disagreement [with
the law] has nothing to do with the right of a majority to
embody their opinions in law. . . . The Constitution is . . .
made for people of fundamentally differing views, and the
accident of our finding certain opinions natural and
familiar, or novel, and even shocking, ought not to conclude
our judgment upon the question whether statutes embodying
them conflict with the Constitution of the United States.
[Justices should not use their office] to prevent the natural
outcome of a dominant opinion, unless it can be said that a
rational

[[Page S6819]]

and fair man necessarily would admit that the statute
proposed would infringe fundamental principles as they have
been understood by the traditions of our people and our law.

Next, General Kagan selected a 1927 concurring opinion in Whitney v.
California where the Court unanimously upheld a conviction for conduct
threatening to overthrow our government by unlawful means. Calling the
concurrence an ``inspiring example of a commitment to protecting
constitutional rights'' and a ``stirring reminder of the value of
freedom of speech in our society, including its importance to
democratic self-governance,'' General Kagan cited her admiration for
this paragraph:

Those who won our independence believed that the final end
of the state was to make men free to develop their faculties,
and that in its government the deliberative forces should
prevail over the arbitrary. They valued liberty both as an
end and as a means. They believed liberty to be the secret of
happiness and courage to be the secret of liberty. They
believed that freedom to think as you will and to speak as
you think are means indispensable to the discovery and spread
of political truth; that without free speech and assembly
discussion would be futile; that with them, discussion
affords ordinarily adequate protection against the
dissemination of noxious doctrine; that the greatest menace
to freedom is an inert people; that public discussion is a
political duty; and that this should be a fundamental
principle of the American government. They recognized the
risks to which all human institutions are subject. But they
knew that order cannot be secured merely through fear of
punishment for its infraction; that it is hazardous to
discourage thought, hope and imagination; that fear breeds
repression; that repression breeds hate; that hate menaces
stable government; that the path of safety lies in the
opportunity to discuss freely supposed grievances and
proposed remedies; and that the fitting remedy for evil
counsels is good ones.

Finally, General Kagan identified a 1952 concurring opinion in
Youngstown Sheet & Tube Co. v. Sawyer. There, the Court held that
President Truman exceeded his constitutional authority when he ordered
the Secretary of Commerce to take possession of most of the Nation's
steel mills in the face of a labor strike during the Korean war.
Respecting a concurring opinion as the ``definitive framework for
evaluating the constitutionality of presidential action,'' General
Kagan observed that:

Two aspects of the opinion are notable. First, Justice
[Robert] Jackson's opinion is a classic formulation of the
propositions that executive authority is not unlimited even
in wartime and that the President is not above the law. That
is all the more remarkable given that its author had served
in the Executive Branch for much of his career, including as
Solicitor General and Attorney General. Second, Justice
Jackson refused to oversimplify constitutional analysis. . .
. [H]is analysis depended in large measure on an assessment
of relevant historical practices and political processes.
That analysis was resolutely legal in its nature; it was not
based on the Justice's political preferences or personal
views. But the analysis took into account the full
complexities of constitutional interpretation in its relation
to modern governance. That is what has given Justice
Jackson's concurrence its staying power and has made it the
Court's principal precedent on executive power.

These three replies by General Kagan are informative. Together they
argue for a limited judicial role, and demonstrate her command of the
philosophical underpinnings of core constitutional doctrine and her
insight into the necessity of aligning those theories with the
functional ``complexities of modern governance.'' They also convey an
awareness of, and therefore perhaps a capacity for, judicial
statesmanship. As Justice Felix Frankfurter once noted, ``breadth of
vision'' and ``capacity to transcend one's own experience'' are often
the defining qualities that matter most in guiding a Justice's work on
landmark cases.
As regards her views on substantive subjects of law, conservative
attorneys such as Charles Fried, Michael McConnell and Paul Clement
have agreed that General Kagan is in the mainstream. For example, she
has affirmed forcefully that stare decisis is a critical command for
the Court. As she wrote to the committee, that command requires a
careful inquiry into whether the precedent has ``been found unworkable,
whether subsequent legal developments have left the rule an
anachronism, or whether premises of fact are so far different from
those initially assumed as to render the rule irrelevant or
unjustifiable.'' Moreover, she testified that:

The entire idea of precedent is that you can think a
decision is wrong. You can have decided it differently if you
had been on the court when that decision was made. And
nonetheless you are bound by that decision. That's--if the
doctrine of precedent enabled you to overturn every decision
that you thought was wrong, it wouldn't be much of a
doctrine. . . . I think when the court looks as though it's
flipping around and changing sides just because the justices
have changed, that's bad for the credibility of the
institution and it's bad for the system of law.

General Kagan has also stated that the Constitution protects a right
of privacy and that Roe v. Wade is not only ``settled law'' but has
been ``doubly settled'' by Planned Parenthood v. Casey. Likewise, she
has stated that foreign law should not have precedential weight in
``any but a very, very narrow set of circumstances,'' such as limited
cases involving ``ambassadors'' or the ``law of war.'' And finally, she
has testified, as noted above, that Youngstown Sheet & Tube remains the
``determinative'' governing standard in assessing Presidential wartime
powers.
With respect to the second amendment, in my view, as a long-time,
ardent supporter of second amendment rights, I have carefully examined
General Kagan's work as the President's attorney a decade ago on a
variety of legislation affecting gun ownership rights. This is a fair
question and, here, General Kagan testified as follows:

The work that I did in the Clinton White House was all work
. . . before Heller was decided, and so we really . . . did
not consider . . . regulations through the Heller prism . . .
because Heller didn't exist at that time. . . . What
President Clinton was trying to do back in the 1990s and what
I as his policy aide was trying to help him do, was to
propose a set of regulations that had very strong support in
the law enforcement community, that had actually bipartisan
support here in Congress to keep guns out of the hands of
criminals, to keep guns out of the hands of insane people. It
was very much an anti-crime set of proposals that I worked on
back then in the '90s.

A former White House colleague corroborated General Kagan's
testimony: ``In all these cases, [President] Clinton had already
settled views on these questions. Our job was to make sure the
government's policy reflected what he wanted. He'd already made up his
mind on most of these contentious issues.''
As several members of the committee during General Kagan's hearing
noted, this same point--that a lawyer's job is to represent the
client's views, and not the lawyer's own views--was also made by
Justices Roberts and Alito when they were asked during their
confirmation hearings about advice they gave while serving as executive
branch attorneys. Both nominees testified that their executive branch
legal counsel reflected ways to advance their elected client's, not
their own personal, legal interests and policy preferences.
With respect to the fact that, more recently, General Kagan did not
file a brief for the United States in McDonald v. City of Chicago--
McDonald did present an important question regarding the interplay of
the second and 14th amendments, and I joined an amicus brief in support
of Mr. McDonald's claim to incorporate the second amendment through the
14th amendment, so that the protections of the second amendment would
apply not just against Federal acts, but against the acts of State and
local governments as well. Here, several observations are warranted.
First, McDonald presented only the question of whether the second
amendment applied to State and local governments, and not what the
scope of the protections of the amendment is. As a result, McDonald,
unlike Heller, presented no implications for the constitutionality of
Federal gun laws. Accordingly, the United States was not a party in the
case.
Second, the issue of incorporation is by its very nature one of
primarily State and local, and not Federal, concern. This explains the
amicus brief signed by 38 States in this case. This also explains why
the Solicitor General's Office has a tradition of not weighing in on
incorporation cases. General Kagan wrote to the committee in response
to a supplemental question that:

It has long been the practice of the Office of the
Solicitor General not to file an amicus brief in cases
concerning the application of a constitutional provision to
the states (so-called incorporation cases). Although
incorporation cases raise important issues of constitutional
interpretation, and may matter

[[Page S6820]]

greatly to individual citizens, those issues do not implicate
the responsibilities and obligations of the federal
government under the Constitution. Incorporation cases
therefore do not fall within the category of cases in which
the Office of the Solicitor General files amicus briefs:
those where the federal government itself has a clear and
specific interest in the resolution of the case.

This response is consistent with the reported statement of former
Solicitor General Erwin Griswold, who was uniquely appointed by a
Democratic President, President Johnson, and retained by his Republican
successor, President Nixon. In 1970, General Griswold reportedly wrote
that incorporation cases are rarely of direct interest to the Federal
government because ``fundamental considerations of federalism militate
against executive intrusion'' into issues of State and local law.
Further, although former Solicitor General Paul Clement did appear in
Heller for the United States, under the Bush administration, Heller was
not an incorporation case. Moreover, the broader question presented by
Heller, unlike McDonald, did implicate the basic scheme of Federal
firearms regulations.
Yet even then, General Clement argued in Heller for a somewhat
narrower ruling regarding personal rights. He also argued for a
somewhat higher level of judicial scrutiny of challenges to regulation
of such rights in order to ensure that the longstanding existing
Federal laws--like possession of machine guns, possession by convicted
felons, or possession on Federal property--that his office is required
to defend were protected. A majority of the Court ultimately respected
and accepted General Clement's concern in both Heller and McDonald. As
Senator Cornyn noted at the hearing, Justice Alito wrote for the
majority in McDonald that:

We made it clear in Heller that our holding did not cast
doubt on such longstanding regulatory measures as
`prohibitions on the possession of firearms by felons and the
mentally ill, . . . laws forbidding the carrying of firearms
in sensitive places such as schools and government buildings,
or laws imposing conditions and qualifications on the
commercial sale of arms.' We repeat those assurances here; .
. . incorporation does not imperil every law regulating
firearms.

Perhaps most importantly, General Kagan testified repeatedly that
both McDonald and Heller are settled law. As regards McDonald, General
Kagan said, ``I do think that . . . decision [McDonald] [is] settled
law; entitled to all of the weight that any precedent of the Supreme
Court has; [and] . . . can only be overturned if there is strong
evidence the ruling [among all of the other stare decisis factors] is
unworkable.''
On Heller, she said: ``I think that Heller is settled law and Heller
has decided that the Second Amendment confers such an individual right
to keep and bear arms. I have absolutely no reason to think that the
court's analysis was incorrect in any way. I accept the court's
analysis and will apply it going forward.'' She also said that Heller's
finding that a personal right of possession is ``deeply rooted in this
Nation's history and traditions'' is a ``central part of the
rationale'' of Heller and, again, is ``settled law.''
Moreover, she testified that she has ``never believed that the
president had the power to prohibit [the sale of firearms] without
legislative authorization. . . . In fact, that's one [issue] that
Heller and McDonald don't effect, that the president didn't have that
power before and doesn't have that power after.'' She also testified
that ``the Second Amendment question, as defined by Heller, was so
peculiar to our own constitutional history and heritage that . . .
foreign law didn't have any relevance.''
Turning to another important issue, I also share the concern for how
General Kagan approached the issue of military recruiting at Harvard
Law School. Under the Solomon amendment, universities like Harvard that
receive Federal funding are required to permit military recruiters on
campus. Opposing the military's don't ask, don't tell policy, General
Kagan was one of several deans to relegate military recruiters to a
less preferred position by withholding Office of Career Services'
sponsorship.
General Kagan also participated in a lawsuit challenging the Solomon
amendment as unconstitutional. Had she prevailed in that suit, colleges
and universities across the country could have denied the military on-
campus access to students across the country. Fortunately, the Supreme
Court summarily and unanimously rejected this challenge in 2006 in
Rumsfeld v. F.A.I.R.
General Kagan continues to defend her decision as a difficult
mediation of competitive on-campus interests. But the prevailing
recognition here is that the Nation was fully engaged in two wars
designed to advance national security, and so I continue to be troubled
that General Kagan chose to relegate the military rather than her
institution's financial or policy interests.
Reviewing the final consideration of judicial philosophy, General
Kagan has spoken directly to the important but appropriately limited
role that the Court plays in our constitutional scheme of government.
She recognizes that the Court is the ``least accountable'' of our
governmental institutions and that the Court is not ``self-starting.''
Citing Alexander Bickel and his 1961 seminal article, General Kagan
stated in our personal meeting that the ``passive virtue'' of the Court
rests in what it does not do, and that the Court should work hard ``not
do more than is called for'' and ``not go too far.'' Likewise, she said
in her questionnaire that ``I think it is a great deal better for the
elected branches to take the lead in creating a more just society than
for courts to do so.''

We recently witnessed what happens when the Court does not adhere to
such decision-making restraints. We are all familiar with Citizens
United v. F.E.C. where the Court overruled a mere 7-year-old precedent
to strike down the electioneering communications provision of the
Bipartisan Campaign Finance Reform Act.
There, the majority effectively converted on its own motion an as-
applied challenge into a facial challenge through its order for re-
argument. According no deference to our 100,000-page factfinding record
that took Congress over 10 years to assemble, and further dismissing
the commands of stare decisis, the majority then rejected the
relatively recent 1990 precedent of Austin v. Michigan Chamber of
Commerce and the very recent 2003 precedent of McConnell v. F.E.C.
Instead, the majority inflated the precedential value of the majority's
very recent--only decided in 2006--and readily distinguishable F.E.C.
v. Wisconsin Right to Life and eschewed arguments to decide the case on
narrower statutory grounds. Consequently, and in striking contrast to
claims of ``judicial modesty,'' the majority then struck down the
electioneering communications provision of BCRA on the broadest of
grounds.
Even granting that General Kagan was an advocate in the case, I was
pleased to hear her say in our personal meeting that the Citizens'
majority ``did not respond in the right way. Congress had gone through
an enormous record and the Court had ruled only a few years earlier.
From where I sat, the Court was wrong.''
I also agree with Justice Stevens' dissent in Citizens that the
activist ``path'' taken by the Citizens'' majority will ``do damage''
to the Court itself. Citizens is not, of course, the only recent case
in which Justices and scholars from across the political spectrum have
viewed the Court's majority as overreaching. Indeed, opinions in
Montejo v. Louisiana, Gross v. FBL Financial Services, Ashcroft v.
Iqbal, and related commentaries have all expressed the same concern.
Finally, I note that, if confirmed, General Kagan will become the
fourth female Justice ever to serve on the Supreme Court. She will
follow Sandra Day O'Conner and join Justices Ruth Bader Ginsburg and
Sonia Sotomayor. General Kagan has already become the first woman to
serve as Solicitor General of the United States, and the fact remains
that it does make a difference who women and girls see at the pinnacles
of government and industry. As Justice Ginsburg observed at the time of
Justice Sotomayor's nomination, ``women belong in all places where
decisions are being made.''
Ultimately, when the Framers accorded us the special role of
confirming judicial nominees that we are exercising here today, having
delegated the power of nomination to the Office of the President, and
having recognized that elections to that office may affect the overall
composition of the Court, the Framers expressly intended that

[[Page S6821]]

we review judicial nominees not by their affiliations, but by their
qualifications. This is why Alexander Hamilton wrote in Federalist 76
that the Senate should deprive a duly elected President of his or her
nominee only for ``special and strong reasons.''
In reviewing the record of General Kagan's scholarship, the to,
evidence of her reputation, and her responses to the committee and
other Members throughout this process, I find in that General Kagan has
a very capable intellect and a deep respect for the rule of law. She
has a command of the important but limited role of the courts, and a
demonstrated commitment to stability in the law. It is therefore my
conclusion that Solicitor General Elena Kagan is qualified to serve as
the next Associate Justice of the Supreme Court.
Ms. CANTWELL. Mr. President, it is with great pride that I express my
strong support for the nomination of Solicitor General Elena Kagan to
be the next Associate Justice of the United States Supreme Court. A
trailblazer in many ways, Solicitor Kagan was the first female to serve
as Solicitor General of the United States and the first female Dean of
Harvard Law School, one of the most prestigious legal educational
institutions in our Nation. Her nomination as Solicitor General
garnered the bipartisan support of every Solicitor General who served
from 1985 to 2009, including Charles Fried, Ken Starr, Drew Days,
Walter Dellinger, Seth Waxman, Ted Olson, Paul Clement, and Greg Garre,
a testament to her ability to build bridges across partisan lines and
her fidelity to law above politics.
Solicitor Kagan brings a wealth of historic legal experience to the
position of Associate Justice, including serving as law clerk to
Justice Thurgood Marshall, the first African-American to serve on the
Supreme Court, working as an associate at the law firm of Williams &
Connolly, teaching as a law professor at the University of Chicago and
Harvard University, and acting as policy counsel to President Clinton
and special counsel to the Senate Judiciary Committee. In these
capacities she handled legal and policy issues ranging from public
health, to education, to war crimes, to campaign finance and welfare.
Solicitor Kagan's experience with different branches of government
equips her with a unique perspective on the law and the challenges the
Court will face in the coming years. Her confirmation honors the legacy
of Justice John Paul Stevens, the outgoing Justice, who was well known
for his service of dignity and intellect, without regard for partisan
divides.
If we confirm her--and I am confident we will--Solicitor Kagan will
be only the fourth woman in history to serve on the Supreme Court, and
will be the third woman to sit on the current Court, the highest number
of female justices to serve at one time.
Solicitor Kagan's confirmation will be an inspiration for generations
of female lawyers and legal scholars to come, and will make an
indelible impression on this country's legal landscape. Today, women
comprise only 19.2 percent of federal district court judgeships, and 20
percent of federal appellate judgeships, highlighting the need for
increased gender representation on our Nation's highest courts.
Solicitor Kagan's confirmation is only a step towards reducing this
gender disparity in our Nation's judiciary.
I followed closely Solicitor Kagan's hearings, and I am impressed by
Solicitor Kagan's commitment to respect the rule of law. The hearings
for Solicitor Kagan, who testified for more than 17 hours and answered
over 540 questions, were thorough and fair. In her opening statement,
Solicitor Kagan observed that, ``the Supreme Court's role in our
society is to act as a safeguard to the rule of law by maintaining a
commitment to impartiality, principle, and restraint; and the role of a
Supreme Court justice is to approach each case with even-handedness and
fair-mindedness, to ensure that everyone who comes before the Court
receives a fair shake.''
Solicitor Kagan also expressed her admiration for Justice Thurgood
Marshal; under whom she clerked, for his view of the Supreme Court as a
means of access to justice for those left without redress after unfair
treatment. Her expressed judicial philosophy of impartiality and
fairness, to individuals of all classes, income levels, and interests,
is a critical component to the High Court in a climate where we see
increasing judicial activeness and partiality to special interests.
Solicitor Kagan's experiences as a scholar and policy advisor
unquestionably qualify her for a position on the Supreme Court. I find
it disingenuous that several of my conservative colleagues have
attacked Solicitor Kagan's lack of judicial experience. The last two of
the previous four chief justices of the Supreme Court, William
Rehnquist and Earl Warren, had no judicial experience when first
nominated to the Court. Nor did, Felix Frankfurter, Louis Brandeis, and
John Marshall, known as the ``Great Chief Justice.'' Over one-third of
the past 111 Supreme Court justices had no judicial experience when
they were first nominated. Rather than being a product of the judicial
monastery, Solicitor Kagan brings a real world perspective on the role
of a justice, with a view to the practical contexts and implications of
the Court's decisions. Solicitor Kagan's two decades of experience
working in every branch of government exceptionally qualify her as an
Associate Justice, and as one of the top legal thinkers in the country.
My conservative colleagues have also criticized Solicitor Kagan's
enforcement of Harvard Law School's anti-discrimination policy.
Solicitor Kagan did not assert her own personal agenda and oppose
military recruitment on campus, as several of my colleagues have
alleged. Instead, as Dean, Kagan was charged with enforcing an anti-
discrimination policy in effect at Harvard since 1979 that prevented
organizations discriminating against selected individuals from
recruiting through the school's office of career services. Kagan's
enforcement of this policy was consistent with her predecessors, Dean
Robert Clark and Harvard President Larry Summers. However, Kagan
ensured that military recruiters still had access to students. Kagan
noted, ``[M]ilitary recruiters had access to Harvard students every
single day I was dean . . . I'm confident that the military had access
to our students and our students had access to the military throughout
my entire deanship.'' Solicitor Kagan's work to ensure student access
demonstrates her support of our military and her encouragement of the
brightest students' involvement in our Armed Services.
Solicitor's Kagan's widespread support is a testament to her impact
on not only her colleagues and peers, but also upon a large number of
those in the legal profession. The American Bar Association, after
conducting an investigation over several weeks that included peer
reviews, concluded that Solicitor Kagan merited its highest rating of
unanimously ``well qualified.'' To merit the Committee's rating of
``well qualified,'' a Supreme Court nominee must be a preeminent member
of the legal profession, have outstanding legal ability and exceptional
breadth of experience, and meet the very highest standards of
integrity, professional competence, and judicial temperament.
In addition, Solicitor Kagan has received support from Democrats and
Republicans and a range of civil rights, non-profit, and advocacy
organizations, including the National Women's Law Center, the National
Partnership for Women and Families, Earthjustice, the American Bar
Association, the Alliance for Justice, the National Association for the
Advancement of Colored People (NAACP) Legal Defense and Education Fund,
the National Association of Women Judges, the Hispanic Bar Association,
the Service Employees International Union (SEIU), and the Leadership
Conference on Civil and Human Rights (LCCR). Solicitor Kagan is also
endorsed by her colleagues in academia, and a group of over sixty-nine
law school deans across the country expressed their written support for
her nomination to the Senate Judiciary Committee in a June 15, 2010
letter. Her supporters also include her former students, including one,
a former law clerk to Justice Antonin Scalia, who called Solicitor
Kagan, ``a person of utmost integrity, extraordinary legal talent and
relentless generosity.''
Solicitor Kagan's intellectual aptitude and commitment to justice was
demonstrated early in her life. She was born in New York City, NY, the
daughter of a school teacher and a public

[[Page S6822]]

housing lawyer. She graduated from Princeton University, received a
Masters in Philosophy from Worcestor College of Oxford University, and
received her law degree magna cum laude from Harvard Law School. She
then clerked for Justice Thurgood Marshall, was an associate with
Williams & Connolly, and then counsel to President Clinton, as
Associate Counsel, Deputy Assistant to the President for Domestic
Policy, and Deputy Director for the Domestic Policy Counsel. She led
the Clinton administration's inter-agency effort to analyze all legal
and regulatory aspects of the Attorney General's tobacco settlement and
then participated actively in the development and congressional
consideration of tobacco legislation. She also handled legislative
issues involving constitutional issues, including separation of powers,
governmental privileges, freedom of expression, and church-state
relations.
As Dean of Harvard Law School, she joined other deans in opposing an
amendment to strip the courts of the power to review detention
practices, treatment and adjudications of guilt and punishment for
detainees at Guantanamo Bay, Cuba. This reflects a fair view, with an
eye to checks and balances on different branches of government.
In her first case as Solicitor General, Solicitor Kagan argued before
the Supreme Court on behalf of the government in the Citizens United v.
FEC case. As Solicitor Kagan notes, however, her role as Solicitor
General was to argue on behalf of the country, not to advance her
personal beliefs.
In my meeting with her, Solicitor Kagan confirmed her commitment to
protecting the right to privacy enshrined in our Constitution. I
believe she will preserve that right.
Solicitor Kagan is uniquely qualified to serve as Associate Justice
because she not only possesses an impressive intellectual capacity and
commitment to fairness, but also because she is committed equal
justice. As she remarked in her opening statement, ``Equal Justice
under the Law. It means that everyone who comes before the Court--
regardless of wealth or power or station--receives the same process and
the same protections . . .''
Solicitor Kagan demonstrates a readiness to serve on our Nation's
Highest Court and I am confident that she will make a fine justice who
will not only uphold the Constitution and legal precedent of the
country, but continue to preserve one of the most treasured tenets of
our legal system, equal access to justice for all Americans.
Mr. LEVIN. Mr. President, earlier this week I spoke on the Senate
floor, calling for the confirmation of Solicitor General Elena Kagan to
the position of Associate Justice of the Supreme Court. I added my
voice to a chorus of bipartisan praise for her qualifications and
abilities to be a Supreme Court Justice, joining supporters such as
Miguel Estrada, Assistant Solicitor General in the George H.W. Bush
administration; former Solicitors General Kenneth Starr and Drew S.
Days and a number of my Republican colleagues, including Senator
Lindsey Graham and Senator Judd Gregg. These voices across the
political spectrum recognize Elena Kagan's years of practical,
pragmatic experience, and value, in the words of Professor Michael
McConnell, director of the Constitutional Law Center at Stanford Law
School, her ``fidelity to legal principle even when it means crossing
her political and ideological allies.''
Despite her abilities and her tremendous legal career, Solicitor
General Kagan continues to be the subject of baseless attacks. For
instance, the National Rifle Association, NRA, has taken out full page
advertisements in multiple newspapers and has aired national television
commercials claiming Elena Kagan is unfit for the Supreme Court because
of her supposed opposition to the second amendment rights of Americans.
The NRA's charges are unfounded and are refuted by the nominee's own
words during her confirmation hearing before the Senate Judiciary
Committee.
For example, in regard to the Supreme Court's 2008 Heller decision,
which ruled that the second amendment protects an individual's right to
possess a firearm for private self-defense purposes in a Federal
enclave, and the Supreme Court's recent McDonald decision, which
applied the Heller holding to the States, the NRA has said that
Solicitor General Kagan has left unanswered ``very serious questions of
whether she would vote to overturn Heller and McDonald.'' Perhaps the
NRA lobbyists were not watching her confirmation hearing when she
replied to a question from Senator Tom Coburn saying, ``I very much
appreciate how deeply important the right to bear arms is to millions
and millions of Americans. And I accept Heller which made clear that
the second amendment conferred that right upon individuals, and not
simply collectively.'' In addition, in response to a related question
from Senator Charles Grassley, Solicitor General Kagan said ``those
decisions are settled law . . . I will follow stare decisis with
respect to Heller and McDonald as I would with any case.''
It seems pretty clear, contrary to the NRA's claims, that Solicitor
Kagan has answered questions concerning her position on the second
amendment rights of Americans, and she will defend those rights.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. I ask unanimous consent that there now be 1 hour remaining
for debate with respect to the Kagan nomination for the U.S. Supreme
Court, with 15-minute blocks controlled as follows: Senator Sessions,
Chairman Leahy, Leader McConnell, and Senator Reid of Nevada; that upon
the use of the allotted hour, the Senate proceed to vote on
confirmation of the nomination; that upon confirmation, the motion to
reconsider be considered made and laid on the table, the President be
immediately notified of Senate's action, and the Senate then resume
legislative session. Further, I ask that when Members cast a vote on
the nomination, they do so from their seats.
The PRESIDING OFFICER. Is there objection?
Mr. REID. Will the Chair withhold please, Mr. President.
You have heard my request. What is the ruling of the Chair?
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Mr. President, at 3:30 today we will vote on the nomination
of Elena Kagan to be an Associate Justice on the Supreme Court.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. SESSIONS. Mr. President, in the midst of President Johnson's
``Great Society,'' Ronald Reagan explained that our Nation had arrived
at a crossroads, at a time for choosing.
The choice, Reagan explained, was ``whether we believe in our
capacity for self-government or whether we abandon the American
Revolution and confess that a little intellectual elite in a far-
distant capital can plan our lives for us better than we can plan it
for ourselves.''
Forty years later, our Nation once again finds itself at a
crossroads. Government is getting larger and larger. Spending is out of
control, and a little intellectual elite, in a far distant capital, is
trying harder than ever to plan the lives of the American people. Even
basic choices about how we care for our own health are now made by
career bureaucrats whose names Americans will never hear and whose
faces they will never see.
Our Nation has a choice to make. We either restore or relinquish our
great heritage of limited constitutional government. Part of that
choice will be made here today. Part of that choice will be made as we
consider the nomination of Elena Kagan to the Supreme Court. In recent
years, the progressive wing of the Supreme Court has offered opinions
that would have denied Americans their right to keep and bear arms, and
severely diminish the right to free speech during election time.
These same progressive Justices succeeded only a short time ago in
ruling that a citizen's property could be seized by the State for
private commercial development. These Justices are ignoring the text of
our Constitution, the plain rights guaranteed by our Constitution, in
order to advance what

[[Page S6823]]

they think are better ideas, their vision, their political agendas,
frankly.
This progressive, activist judicial philosophy strikes at the heart
of our democracy and is a direct threat to our liberty. Judges are
lifetime appointed. They are not accountable to the people. President
Obama himself has said that judges must shed their neutral
constitutional role and impose upon the nation ``their broader vision
of what America should be.'' That is how he said he would pick judges,
and this is certainly the kind of judge President Obama believes he has
found in Ms. Kagan, someone who shares his progressive, elitist vision
and is willing to advance it from the bench.
Indeed, throughout Ms. Kagan's career, she has been more deeply
involved in politics than law, and has frequently put her politics
above law. She has never been a judge, never argued even a case before
a jury. She has practiced law for 3 years. She has less real legal
experience than any nominee in the last half century.
The experience Ms. Kagan does have, however, is mostly that of a
political lawyer and a policy advocate, and whenever her political
views have clashed with her legal obligations, her vision of what
America should be and not her duty have too often won the day.
As a Supreme Court clerk she pursued a progressive agenda without
regard to the Constitution's text or history. She even wrote she was
not sympathetic to an American's constitutional right to keep and bear
arms. As a top aide to President Clinton she was closely involved in
efforts to restrict private gun ownership, including a plan to block
firearm importation into our country that one Clinton official admitted
was ``taking the law and bending it as far as we can.''
She also worked aggressively to ensure the wide availability of
partial-birth abortion. Instead of providing President Clinton with
sound legal advice based on the best medical evidence, she pushed the
President away from his moderate position, and away from his
willingness to reach a compromise on this issue. She even helped revise
a medical statement to imply a medical need for the gruesome partial-
birth abortion procedure that did not exist, when the expert panel had
indeed said it was never an appropriate procedure.
Next, as dean of Harvard Law, Ms. Kagan would once again sacrifice
legal principle for political gain for advancement of an agenda she
believed in. Ms. Kagan inherited a policy of equal and unfettered
access for military recruiters on campus. That was the policy. But she
reversed this policy, kicking the military out of the campus
recruitment office as our troops at that very time were risking their
lives overseas. She did this in clear, knowing violation of Federal
law, the Solomon amendment. The Solomon amendment, passed by this
Congress four times, requires unrestricted, equal access on campuses
for military recruiters. Ms. Kagan knew what the law said, and as she
herself admitted, knew that it was in force every single day she was
dean. But she put her own views, her political ideas, her ideologies
above the law and above the best interests of our soldiers, stripping
the military of their official access availability on campus.
Ms. Kagan justified this conduct by saying she was objecting to don't
ask, don't tell. That statute, however, was passed by Congress and
implemented by President Clinton, her former boss. But instead of
complaining to the politicians who made the rule, to those of us in
Congress who were involved in passing it and maintaining it, working
within the democratic system, Ms. Kagan took it upon herself to defy
the law and to demean the people who were merely following the law, our
noble men and women who serve our country.
Perhaps some of those on that campus recruiting had just come off the
battlefield, having served their country, placing their lives at risk.
For that there can be no justification.
After Harvard, Ms. Kagan assumed the post of Solicitor General of the
United States. In that job it is her sworn duty to defend all Federal
laws, including those she may personally oppose. These are the laws of
Congress which the Solicitor General must defend. As every good lawyer
knows, her job is to represent her clients, and the client of the
Solicitor General is the United States of America.
Did she fulfill that duty? Did she faithfully represent her client?
No, she did not. When the liberal Ninth Circuit issued a deeply flawed
ruling against don't ask, don't tell, the law Ms. Kagan had so strongly
opposed at Harvard, she did not appeal the ruling, despite great
chances of success on appeal to the Supreme Court. Instead, she did
exactly what the ACLU, the group who was leading the fight in
representing the individual in that lawsuit, who opposed the statute
and wanted it stricken, she did what they desired and let the ruling
stand, and missed the opportunity to get a clear appeal. This was a
test of Ms. Kagan's legal character, and she failed that test. I
studied the case closely. I want to be fair to her about that.
The only explanation for her not appealing to the Supreme Court was
that she did not want them to uphold the statute to win a victory for
the United States. In short, she did not fulfill her duty. Her duty. Is
that a word that is out of fashion today? And she did not live up to
her explicit, sworn promise made to this Senate, to vigorously defend
that very statute, when she was confirmed to be Solicitor General.
Given this record, it is not surprising that Ms. Kagan's judicial
heroes are activists who reject and repudiate sometimes even the very
idea of objectivity. But it is objectivity, the search for what is
right and true, that makes our system of justice so extraordinary and
so unique. The whole goal of our trials is to find the truth. These
concerns were addressed during the hearing. Ms. Kagan was given every
opportunity to respond. But she opted, I thought, for political spin at
the expense of rigorous honesty and accuracy. In so doing, she only
further demonstrated she lacked the qualities necessary to sit on the
Court. Other Senators have the same impression of that testimony.
Some have said that Senators are opposing this nomination for
partisan reasons, that her qualifications are not in question. But what
qualification is more essential for the Supreme Court than impartial
fidelity to the law? This is not an ideological litmus test but a core
bipartisan standard to which any nominee of any party ought to be held.
Senators can and will disagree on the question of how much deference
a President is due in his nomination. But surely that deference cannot
extend so far as to include a nominee who is unable to serve under the
Constitution as they take an oath to do.
The American people will not easily forgive the Senate if we confirm
Ms. Kagan to the Supreme Court. They will not forgive the Senate if we
further expose our Constitution to revision and rewrite by judicial
fiat, to advance what President Obama says is a broader vision of what
America should be. That is the Congressional role, not the judicial
role, to figure out what the vision and the policy of this country
should be.
Now more than ever we need this Court to be an impartial defender of
our constitutional liberty. As Vice President Biden's own chief of
staff and close friend of Ms. Kagan emphatically said, ``Ms. Kagan is
clearly a legal progressive.'' If confirmed, I fear she will continue
putting her politics above the law, as she has so often done before. So
I invited those who supported this nomination to refute the record and
the analysis I have stated over the several past weeks, but I do not
think one error has been raised and identified by Ms. Kagan's
supporters in what I have said.
So we are left with the same concern, that Ms. Kagan would ally
herself not with the constitutional liberties of all Americans but with
the big government agenda of the President who nominated her. In fact,
at the hearing, Ms. Kagan was unable to identify any limits on the
government's power to control America's economic decisions. What Ms.
Kagan perhaps fails to realize is that the people should control their
government, not the other way around.
That is why no Supreme Court Justice should simply rubberstamp any
political agenda of a President or Congress, nor should any Senator.
Our liberties are far more precious than any partisan allegiance.
After the Constitution was drafted, Benjamin Franklin was asked what
kind of government had been created. Franklin replied: A republic, if
you can keep it. Again, the choice is ours. Either we embrace our
great, magnificent

[[Page S6824]]

constitutional heritage that I love so much or we let it slip away to
judges who believe they can allow their own personal core beliefs and
philosophies to help them decide how a case should go. Either we move
forward more secure in our freedom or we fall back to the old bankrupt
idea of big government--an idea that has failed at every place, every
time it has been tried.
Let's take a step today in the right direction. Let's listen to the
American people and strengthen our commitment to constitutional values.
It is that commitment that impels me to vote against this nomination
and why I urge my colleagues in both parties to do the same.
I see the chairman of the committee, Senator Leahy. He and I don't
agree on this nomination, but he is a proven professional chairman. He
has gone through a host of these nominations. He is tough, but he is
fair. He let us have our say. I thank the chairman for the privilege of
working with him on this important constitutional effort.
The PRESIDING OFFICER (Mr. Franken). The Senator from Vermont is
recognized.
Mr. LEAHY. Mr. President, I thank the Senator from Alabama for his
kind words. We both set out with the goal of making sure the United
States had a chance to hear this nomination, to hear the debate on it,
and to have Senators speak. We both decided before the debate that
would happen, and it has. I thank the Senator from Alabama.
We are about to conclude debate on the nomination of Elena Kagan to
be Associate Justice of the U.S. Supreme Court. This is the time when
the 100 of us stand in the footsteps of 300 million Americans and make
the decision whether she will be confirmed to a lifetime appointment. I
predict right now she will be confirmed and I look forward to her
bipartisan confirmation.
She has been nominated to succeed Justice John Paul Stevens, someone
who served with integrity for so many years, a man I consider a friend.
Her qualifications, intelligence, temperament, and judgment will make
her a worthy successor to Justice John Paul Stevens.
When she is appointed by the President after we confirm her, three
women will serve together on the Supreme Court of the United States for
the first time in our Nation's history, three women on the nine-member
Supreme Court. As I said 5\1/2\ weeks ago, when the Judiciary Committee
began Solicitor General Kagan's confirmation hearing, we are a better
country for the fact that the path of excellence Elena Kagan has taken
in her career is one now open for both men and women. I look forward to
the day when I see many more women on that Court.
Solicitor General Kagan's legal qualifications are unassailable. She
earned her place at the top of the legal profession. No one gave it to
her; she earned it. As a student, she excelled at Princeton, Oxford and
Harvard Law School. She was a law clerk to a giant in American justice
and American law, Justice Thurgood Marshall. She worked for then-
Chairman Biden on the Judiciary Committee. These experiences, combined
with her work as an advisor to President Clinton, give her background
in all three branches of our government. She also taught law at two of
the Nation's most respected law schools. In the decade since the
Republican Senate majority pocket-filibustered her nomination to the DC
Circuit--remember, when people say she does not have judicial
experience, of course, Republicans did block her from going on the
court--Elena Kagan became the first woman dean of Harvard Law School
and then the first woman Solicitor General of the United States, often
referred to as the 10th Justice.
The 100 of us who serve in the U.S. Senate stand in the shoes of more
than 300 million Americans as we discharge this constitutional duty to
consider nominations to our Nation's Federal courts. We will conclude
our consideration of this nomination after 12 weeks. If we can do that
for a Supreme Court nomination, we ought to be able to consider the
other judicial nominations that have been stalled for months after
being favorably reported by the Judiciary Committee.
This is the 15th time since I have been in the Senate that I have
been able to consider a Supreme Court nomination. I have applied the
same standards to this nomination as I have to the ones that preceded
it. I looked to see whether Solicitor General Kagan would fairly apply
the law and use common sense. That is the same standard I used on the
first Supreme Court Justice I voted on, a man from Chicago, Justice
John Paul Stevens, nominated by a Republican President. I proudly voted
for him. For Solicitor General Kagan, I looked to see whether, as a
Justice, she would appreciate the proper role of the courts in our
democracy. Would she be the kind of independent Justice who would keep
faith with each of the words inscribed in Vermont marble over the front
doors to the Supreme Court: ``Equal justice under law.'' My answer to
these questions, based on her record and testimony, is a resounding
yes.
Solicitor General Kagan demonstrated an impressive knowledge of the
law and fidelity to it. She spoke of judicial restraint and respect for
our democratic institutions, her commitment to the Constitution and the
rule of law. She made clear that she will base her approach to deciding
cases on the law and the Constitution, not politics or an ideological
agenda. So today I will cast my vote for Elena Kagan's confirmation.

I observed at the outset of this confirmation process that there was
no one President Obama could nominate who would not be opposed by some.
Some Senators announced their opposition to Solicitor General Kagan's
nomination even before a hearing took place. The opening statement of
others at the Judiciary Committee hearings struck me more like
prosecutors' closing arguments. Senators who last year disregarded
Justice Sotomayor's years of judicial service to focus on a few phrases
taken out of context from her speeches reversed their course this year
to proclaim that an extensive judicial record is imperative. Standards
shift almost every time. They then faulted Solicitor General Kagan for
not having been a judge, while ignoring the fact that it was Senate
Republicans who pocket-filibustered her judicial nomination more than
10 years ago.
Senators can make their own judgments, and they have. I ask of them
only two things: Fairly consider Solicitor General Kagan's testimony
and adhere to the standards of fairness and objectivity that you are
demanding of her as a Justice. History will judge whether Senators have
fairly considered the nomination of Solicitor General Kagan. I commend
those Senators who have shown the independence to join the bipartisan
confirmation of this nomination.
I also defend the right of every Senator to vote as he or she
chooses. I understand that some statements made in opposition to this
nomination were seen as insulting to the nominee and to others. I
disagree with the many inferences, conclusions and judgments expressed
in opposition, but I do not think Senators intended their remarks to be
disparaging.
Five years ago, I followed the Democratic leader's statement in
opposition to the nomination of John Roberts with my statement in favor
of that nomination. That was my judgment based on the record and his
testimony, including his pronouncements on judicial restraint,
deference to Congress, and respect for precedent. At the time, Senators
on the Democratic side of the aisle--a number of them--disagreed with
me, including one Senator who disagreed with me but, nevertheless, came
to the floor to defend my position. That Senator was the then-junior
Senator from Illinois. Of course, he now serves as President of the
United States. As I told President Obama the other day, his defense of
me meant a lot then, and 5 years later, it still does.
In the course of our consideration of this nomination, I have spoken
several times about the key role real world judging and judicial
independence have played in furthering the Constitution's purpose of
forming a more perfect union. It is essential that judicial nominees
understand that, as judges, they are not members of any administration.
I believe Solicitor General Kagan has that understanding. Courts are
not subsidiaries of any political party or interest group, and our
judges should not be partisans. That is why the Supreme Court's
intervention in the 2000 Presidential election in Bush v. Gore was so
jarring and why the recent decision by five conservative activist
Justices in Citizens United to

[[Page S6825]]

throw out 100 years of legal developments in order to invite massive
corporate spending on elections for the first time in 100 years was
such a jolt to the system.
It is also essential that judges and Justices understand how the law
affects Americans each and every day. I expect Elena Kagan learned
early on in her legal career, when she clerked for Justice Marshall,
that Justices ought to understand how their decisions affect real
Americans. In the hard cases that come before the Supreme Court, in the
real world, we want and need Justices who have the good sense to
appreciate the real world ramifications of their decisions. The
American people live in the real world of great challenges. The Supreme
Court needs to function in that real world.
It took a Supreme Court that, in 1954, understood the real world to
conclude in Brown v. Board of Education that the seemingly fair
sounding doctrine of separate but equal was in reality a straitjacket
of inequality and inconsistent with the constitutional guarantee of
equality. It took a Supreme Court 75 years ago that understood the real
world and the Great Depression to reject conservative judicial activism
to accept the constitutional authority of Congress to outlaw child
labor, to guarantee a minimum wage, and to establish a social safety
net for all Americans. Through Social Security, Medicare and Medicaid,
Congress ensured that growing old no longer means growing poor and that
being older or poor no longer means being without medical care. That
progress continues today with our efforts to pass laws to ensure
protection from natural and manmade disasters, to encourage clean air
and water, to provide health care for all Americans, to ensure safe
food and drugs, to protect equal rights, to enforce safe workplaces and
provide a safety net for seniors.
Vermont did not vote to join the Union until the year the Bill of
Rights was ratified. Those of us from the Green Mountain State are
protective of our fundamental liberties. Vermonters understand the
importance the Constitution, including the Bill of Rights and the
subsequent constitutional amendments have had in expanding individual
liberties over the last 220 years. I believe Solicitor General Kagan
shares this understanding. As she said in her opening statement at the
hearing:

What the rule of law does is nothing less than to secure
for each of us what our Constitution calls ``the blessings of
liberty''--those rights and freedoms, that promise of
equality, that have defined this nation since its founding.

All of us are better for our historic progress to greater freedom,
equality, and security.
Every February, the Senate hears President George Washington's
Farewell Address. It is usually read by the Senate's most junior
Member. In that pronouncement by our first President, George Washington
warns against the danger of factions, partisanship, and what he called
``the spirit of party,'' noting:

[T]he common and continual mischiefs of the spirit of party
are sufficient to make it the interest and duty of a wise
people to discourage and restrain it.
It serves always to distract the Public Councils, and
enfeeble the Public Administration. It agitates the Community
with ill-founded jealousies and public alarms; kindles the
animosity of one part against another, foments occasionally
riot and insurrection.

That was George Washington, a long time ago. But today our Nation
faces many challenges. It is a time when we should be pulling together
and working together. Instead, we have seen too much obstruction,
negativity, and devotion to the failure of the other party instead of
the success of the country.
The nomination of Solicitor General Elena Kagan is a matter on which
I expect the President had hoped we would come together. Her nomination
really is one worthy of broad bipartisan support.
With Elena Kagan's confirmation, the Supreme Court will better
reflect the diversity that has made our country so great. We will write
another chapter in the history of our Nation's highest Court. And we
will take another step forward in fulfilling the hopes and dreams of
the trailblazers who set the path for Elena Kagan to follow.
I will proudly vote for her confirmation.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. SESSIONS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SESSIONS. Mr. President, I would like to express my appreciation
to my staff who worked tirelessly during these past few months on this
nomination. They spent many long hours combing through and distilling
information in hundreds of thousands of documents provided by Solicitor
General Kagan, the Clinton Library and the Pentagon. On a short
timeline, my staff worked around the clock to prepare for the hearing
before the Judiciary Committee, which occurred merely 49 days after
President Obama announced Solicitor General Kagan's nomination to the
Supreme Court. Because of their hard work and dedication, our members
were well-prepared and well-informed, which allowed us to conduct a
fair and thorough hearing.

Mr. President, I would like to thank my staff and Senator Leahy's
staff, the Judiciary Committee staff, for their fine work during this
nomination process. It has gone on for a number of weeks, and it has
been very stressful, with a lot of late nights, and people really have
worked hard. I believe that has provided us with good and accurate
information.
I particularly would like to express my appreciation to my staff
director, Brian Benczkowski, on whom I have relied repeatedly through
this process, for his good judgment and wise counsel, his integrity and
experience as we have dealt with this difficult challenge. I would also
note my chief counsel for nominations, Danielle Cutrona, who has also
worked exceedingly hard, as well as my deputy staff director, Matt
Miner.
I would like to acknowledge and thank the other hard-working and
talented lawyers on my permanent staff who worked on this nomination,
including William Smith, Ted Lehman, Bill Hall, Mark Patton, John
Ellis, and Kimberly Kilpatrick.
I would also like to extend my appreciation to the talented lawyers
who joined my staff as Special Counsels specifically to work on this
nomination, including Ralph Johnson, Jason Tompkins, and Susanna
Dokupil. And I would be remiss if I did not mention the efforts of our
Law Clerks, two of whom dedicated their time while studying for the bar
exam, including Amanda Lavis, Ed Liva, and Taylor-Lee Wickersham.
I would also like to acknowledge our dedicated support staff: Lauren
Pastarnack, Sarah Thompson, Andrew Bennion, Allison Busbee, Kate
Laborde, and Ivy Williams.
Finally, I cannot overstate the important work done by our press
team. My Communications Director Stephen Boyd, Press Secretaries Sarah
Haley and Stephen Miller, and Press Assistant Andrew Logan have worked
tirelessly throughout this process.
All of these individuals shouldered the brunt of this enormous task,
working late hours and through weekends and holidays. They deserve our
recognition for their hard work, professionalism, and dedication to
public service.
I would also like to thank the other talented lawyers on my staff
who, among others I have just mentioned, handled the regular
legislative business that came before the Judiciary Committee during
this process: Joe Matal, Bradley Hayes, and Sam Ramer.
And let me express my gratitude to the Republican Leader and his
staff, specifically John Abegg, Josh Holmes, and Webber Steinhoff;
along with Republican Policy Committee Counsel Gregg Nunziata who
provided invaluable assistance to my staff.
I'd also like to express my thanks to Chairman Leahy for his work on
this nomination. We didn't always agree on everything, but he was
respectful of Republicans' rights during this process and he conducted
a fair and thorough hearing. He would not have been able to do that
without the help of his staff, including his Staff Director and Chief
Counsel Bruce Cohen and his Chief Nominations Counsel Jeremy Paris.
Finally, I would like to thank the Judiciary Committee's Chief Clerk,

[[Page S6826]]

Roslyne Turner and her assistant, Erin O'Neill.
Every one of these talented staff members contributed to this
process, and their dedication and hard work helped us conduct a fair
and thorough hearing. I extend my heartfelt thanks to each of them. We
could not have fulfilled our Constitutional duty of Advice and Consent
without them.
Mr. President, there are in the hearing nine letters in opposition to
the nomination of Elena Kagan to be Associate Justice of the Supreme
Court from Gonzalo Vergara, Lt. Col., USAF (Ret); the Judicial Action
Group; National Right to Life Committee; Military Families United; the
Liberty Counsel; The Ethics & Religious Liberty Commission of the
Southern Baptist Convention; the American Association of Christian
Schools; the Center for Military Readiness; and the National Rifle
Association of America.
I ask unanimous consent to have printed in the Record four letters
from the National Right to Work Committee; the American Conservative
Union; C. Everett Koop, former U.S. Surgeon General, and the Ethics &
Religious Liberty Commission of the Southern Baptist Convention.
There being no objection, the material was ordered to be printed in
the Record, as follows:

National Right to

Work Committee,

Springfield, VA, July 1, 2010.
U.S. Senate,
Washington, DC.
Dear Senator: On behalf of the over 2.6 million members of
the National Right to Work Committee, I strongly urge you to
vote against confirmation of Elena Kagan for a lifetime seat
on the United States Supreme Court. Her record as an high-
level White House advisor to President William Jefferson
Clinton demonstrates that her views about the First-Amendment
and statutory rights of American workers are far outside the
judicial mainstream.
In 1976, in Abood v. Detroit Board of Education, a case in
which National Right to Work Legal Defense Foundation
attorneys represented the plaintiff, public school teachers,
the U.S. Supreme Court considered whether nonunion public
employees can constitutionally be compelled as a condition of
employment to subsidize their union monopoly bargaining
agent's political activities. The Court, unanimously, held
``that a State cannot constitutionally compel public
employees to contribute to union political activities which
they oppose.''
The First-Amendment right of workers not to be forced to
subsidize union politics, first recognized in Abood, has been
reaffirmed by the Supreme Court in several subsequent cases
brought to the Court for workers by National Right to Work
Legal Defense Foundation attorneys, cases such as Ellis v.
Railway Clerks (1984), Teachers Local 1 v. Hudson (1986),
Lehnert v. Ferris Faculty Ass'n (1991), and Davenport v.
Washington Education Ass'n (2007).
The Court's Abood ruling relied on the principle underlying
the Supreme Court's 1976 decision about the Federal Election
Campaign Act in Buckley v. Valeo, that ``contributing to an
organization for the purpose of spreading a political message
is protected by the First Amendment.'' The Court has
reiterated that principle repeatedly, and relied upon it
again as recently as this year in Citizens United v. Federal
Election Commission.
However, in 1996, when she was Associate Counsel to
President Clinton, Ms. Kagan rejected this long, unbroken
line of Supreme Court precedent that protects the First-
Amendment right of public employees--and of Americans
generally--not to be compelled by government to subsidize
political activities of private, voluntary associations.
In an e-mail message on October 31, 1996, to Paul J.
Weinstein, Jr., Chief of Staff of the White House Domestic
Policy Council, Ms. Kagan said (emphasis added):
It is unfortunately true that almost any meaningful
campaign finance reform proposal raises constitutional
issues. This is a result of the Supreme Court's view--which I
believe to be mistaken in many cases--that money is speech
and that attempts to limit the influence of money on our
political system therefore raise First Amendment problems . .
. I also think the Court should reexamine its premise that
the freedom of speech guaranteed by the First Amendment
entails a right to throw money at the political system.
In her Senate Judiciary Committee testimony on June 29,
2010, Ms. Kagan claimed in answer to a question from Senator
Orrin Hatch that these were merely the Clinton
Administration's, not her personal, views.
However, later, on October 31, 1996, Ms. Kagan was one of
several White House staff members whose memorandum
recommending how the White House should respond to questions
about President Clinton's ``Campaign Finance Reform
Announcement'' was transmitted to White House Chief of Staff
Leon Panetta. That memo from Ms. Kagan and others
incorporated Ms. Kagan's argument that the First Amendment
does not protect the right to spend money for political
activities. In short, in 1996 Ms. Kagan both suggested and
endorsed that crabbed view of the. First Amendment.
Thus, Ms. Kagan's testimony this week before the Senate
Judiciary Committee clearly is disingenuous. It is reasonable
to conclude from her record that, if confirmed, Ms. Kagan
would be willing to overrule Abood's well-established
protection of the constitutional right of workers not to
be forced to subsidize union politics.
This conclusion is supported by other documents the Clinton
Presidential Library recently produced for the Senate
Judiciary Committee in preparation for its hearings on Ms.
Kagan's Supreme Court nomination.
On November 14, 1996, Ms. Kagan sent a memorandum on White
House stationery to then White House Counsel Jack Quinn and
then Deputy White House Counsel Kathleen Wallman about a
draft ``memo to the President on campaign finance.'' In her
memo, Ms. Kagan said:
The memo does not address what seems to me the key issue in
developing a strategy on campaign finance legislation: how to
deal with Republican efforts to restrict labor union
spending. I think the Republicans will insist on including in
any campaign finance legislation a provision making it
difficult for unions to use money from compulsory union dues
in political campaigns. . . . We should start thinking now
how we're going to deal with this Republican poison pill.
In 1988, of course, in Communications Workers v. Beck, yet
another case in which National Right to Work Legal Defense
Foundation attorneys represented the plaintiff workers, the
Supreme Court had already held that the National Labor
Relations Act--like the First Amendment--prohibits unions
from using compulsory union dues of objecting workers in
political campaigns. Thus, any provision that would make ``it
more difficult for unions to use money from compulsory union
dues in political campaigns'' would simply protect a
constitutional and statutory right of workers recognized by
the Court in the Abood line of cases and in Beck.
Ms. Kagan nonetheless subsequently recommended that
President Clinton oppose any legislation protecting the right
of workers not to be forced to subsidize union politics,
despite the First Amendment's guarantee of that basic worker
freedom of speech and association.
On February 12, 1997, Kathleen Wallman, then Deputy
Assistant to the President for Economic Policy, circulated an
11:30 a.m. draft memorandum for the President on possible
policy announcements of labor issues that the Vice President
could make at a meeting of the AFL-CIO's Executive Committee
later that month. The draft indicates that Ms. Kagan, by then
Deputy Assistant to the President for Domestic Policy, was
writing two sections of the memo that were not included in
the draft. One of those sections that Ms. Kagan ``agreed to
draft'' concerned the Administration's ``[p]osition on Beck
legislation aimed at limiting the use of union dues in
political activity.''
Later that same day, Ms. Kagan e-mailed Ms. Wallman her
recommendation about ``legislation aimed at limiting the use
of union dues in political activity'' (italics added): John
Hilley [Director of Legislative Affairs], Bruce Reed
[Director of the Domestic Policy Council], and I all
recommend that you state strong opposition to Beck
legislation, no matter what it is attached to.''
In sum, as a high-level White House official Ms. Kagan both
disagreed with the well-established legal principle that
underlies the long line of Supreme Court decisions
recognizing the constitutional right of workers not to be
compelled to subsidize union political activities as a
condition of employment and opposed any legislation designed
to protect that fundamental right of free speech and free
association. This puts her far outside the judicial
mainstream and demonstrates a disdain for the rights of
independent-minded American workers.
Consequently, on behalf of the National Right to Work
Committee's over 2.6 million members, I strongly urge you to
vote NO on confirmation of Ms. Kagan's nomination to the
Supreme Court.
Respectfully,

Mark A. Mix.
____

Dear Senator: On behalf of the American Conservative Union,
I strongly urge you to vote ``NO'' on the confirmation of
Elena Kagan to the U.S. Supreme Court.
Elena Kagan's entire career is more suited to that of a
political activist than a legal scholar, as she has been
described by President Obama and as she described herself in
her testimony. Kagan began public life as a political
operative for the U.S. Senate campaign of Elizabeth Holtzman
of New York in 1980. The documents produced for the Judiciary
Committee show that, as a member of the Clinton
Administration's Justice Department, Kagan's primary role was
to develop political strategy in dealing with the Congress on
legal issues. A good example of this is when the issue of
partial birth abortion came before the Senate during the
Clinton administration. At this time Kagan proceeded to
negotiate changes to a statement by the American Council of
Obstetricians and Gynecologists (ACOG) that said there were
no serious medical reasons for conducting a partial birth
abortion. Kagan's involvement made it more difficult for the
Senate to pass a ban on partial birth abortion. This example
clearly displays that Kagan is more of a political operative
than a legal scholar.

[[Page S6827]]

Another serious impediment to Kagan's nomination is her
deep involvement as the Obama Administration's Solicitor
General on issues that will continue to come before the
Supreme Court. This may mean that Kagan will or should have
to recuse herself from key decisions of the court. As
outlined in a letter from Republican members of the Committee
on July 13 to Kagan, there is even a question as to whether
recusal will be an issue when the constitutionality of the
recently passed health care bill comes before the court.
Kagan has also shown herself willing to ignore the law for
political purposes. As Dean of the Harvard Law School, Kagan
banned military recruiters on campus in violation of the
Solomon Act to satisfy campus activists. Her actions were
voided by a unanimous 8-0 decision of the very court on which
she has been nominated to serve.
Although through the mid-twentieth century, court
appointments of politicians were sometimes made to satisfy
political deals, such as the appointment of Earl Warren in
the 1950s, in recent years judicial experience and legal
background have been at the forefront of nominations. The
nomination of Elena Kagan is more akin to President Lyndon
Johnson's nomination of political crony Abe Fortas as Chief
Justice, which had to be withdrawn.
It was President Obama, as a U.S. Senator, who changed the
criteria for judges from minimum qualifications to judicial
philosophy and more subjective criteria. The nomination of
Elena Kagan is a blatant attempt to place on the court a
political operative who will work as an advocate of
Administration policies rather than look at rulings from an
objective view of constitutionality. Please vote ``NO'' in
the confirmation of Elena Kagan.
Sincerely,

Larry Hart,

Director of Government Relations,
The American Conservative Union.
____

An Open Letter to the American People: For many years,
before, during and after my service as surgeon general of the
United States, I've been known for presenting my unvarnished
opinion on medical matters, regardless of the views of
political parties or outside influences. The time has come
for me to do so again.
I was deeply disturbed to learn that Elena Kagan, the
nominee for Supreme Court scheduled for a Senate committee
vote next week, manipulated the medical policy statement on
partial-birth abortion of a major medical organization, the
American College of Obstetricians and Gynecologists (ACOG) in
January 1997.
The problem for me, as a physician, is that she was willing
to replace a medical statement with a political statement
that was not supported by any existing medical data. During
the partial-birth abortion debate in the 1990s, medical
evidence was of paramount importance.
Ms. Kagan's amendment to the ACOG Policy Statement--that
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''--had no basis in published
medical studies or data. No published medical data supported
her amendment in 1997, and none supports it today.
Indeed, there was, and is, no reliable medical data that
partial-birth abortion is safe or safer than alternative
medical procedures.
There are other medical options.
In my many decades of service as a medical doctor, I have
never known of a case where partial-birth abortion was
necessary in place of a more humane and ethical alternative.
Not only have I never seen such a case, but I have never
known of any physician who had to do a partial-birth
abortion--nor have I ever met a physician who knew of anyone
who had to perform one out of medical necessity. In fact,
partial-birth abortion has risks of its own, and could injure
a woman.
Medical science should not have been twisted in 1997 for
political or legislative gains.
Ms. Kagan's political language, a direct result of the
amendment she made to ACOG's Policy Statement, made its way
into American jurisprudence and misled federal courts for the
next decade.
She misrepresented not only the science but also
misrepresented her role in front of your elected
representatives in the United States Senate.
This is unethical, and it is disgraceful, especially for
one who would be tasked with being a measured and fair-minded
judge.
Americans United for Life Action has released a thorough
and comprehensive report on this matter, a report that
provides substantive evidence of Ms. Kagan's actions in this
matter. I ask that Senators and the American people give this
report their most serious consideration. I urge the Senate to
reject the politization of medical science and vote no on the
Kagan nomination.
Sincerely,
C. Everett Koop, M.D., Sc.D.,
Surgeon General of the United States Public Health Service,
1981-89.
____

The Ethics & Religious Liberty Commission of the Southern
Baptist Convention,
Washington, DC, July 20, 2010.
Hon. Patrick J. Leahy,
Chairman, Senate Judiciary Committee, U.S. Senate,
Washington, DC.
Hon. Jeff Sessions,
Ranking Member, Senate Judiciary Committee, U.S. Senate,
Washington, DC.
Dear Chairman Leahy and Ranking Member Sessions: On June
25, we sent you a letter expressing serious concerns about
Elena Kagan's nomination as the next associate justice to the
U.S. Supreme Court. As we stated, we have been alarmed about
Kagan's lack of respect for the First Amendment's right to
free speech, her admiration for extreme judicial activists,
and her role in advancing pro-abortion policies. We also
expressed our distress about Kagan's attempts, while dean of
Harvard Law School, to bar military recruiters from campus
because of her own personal views in opposition to the
military's ``Don't Ask, Don't Tell'' policy. Unfortunately,
these concerns remain.
During the Judiciary Committee's confirmation hearings,
Kagan failed to satisfactorily clarify her actions and
opinions. Many of her answers were confusing and unclear. She
refused to respond to several key questions in an open and
honest manner. She also avoided many issues altogether. Since
Kagan has had no judicial experience and possesses limited
experience as a practicing attorney, we were interested in
learning about her judicial philosophy. However, we learned
little about her beliefs and judicial views during the
confirmation hearings. Rather than providing answers to our
concerns, Kagan's responses have only raised more serious
questions.
After careful consideration, we believe Elena Kagan is not
a suitable nominee for the Supreme Court. She has evaded too
many questions and her record is too obscure to confirm her
to this lifetime appointment. Consequently, we urge you to
vote against Kagan's confirmation to the Supreme Court.
Sincerely,
Richard D. Land.

The PRESIDING OFFICER. The Senator from Kentucky.
Mr. McCONNELL. Mr. President, let me begin by thanking the chairman
and ranking member of the Judiciary Committee, Senator Leahy and
Senator Sessions, on conducting a dignified and respectful hearing on
the Kagan nomination.
Let me just add that, in my view, the way Republicans on the
Judiciary Committee have conducted themselves in the minority over the
past few years underscores that the kind of hyperbole and hysteria that
has too often accompanied the Supreme Court nominations of Republican
Presidents is hardly an essential part of the process. The committee
hearings gave Senators and the American people a valuable opportunity
to focus our attention on a woman whom President Obama would like to
see deciding cases on some of the most important and consequential
issues we face as a country. Ms. Kagan will be ruling on some of the
most important legal questions that arise during President Obama's
administration and long after he leaves office. It was vitally
important that we have an opportunity to question her on her views
about the law. What we learned from the hearing and what we were unable
to learn from it form an important part of the record on her
nomination.
But this, of course, is just a part of Ms. Kagan's record. Senators
have spent weeks examining Ms. Kagan's experience and background in
light of the awesome responsibility that comes with a lifetime
appointment on our Nation's highest Court. As I have said previously,
my own judgment is that Ms. Kagan is not suited to assume a lifetime
position on our Nation's highest Court. Now I would like to explain why
in more detail.
As we know, Ms. Kagan does not have the judicial or private practice
experience most modern-day Supreme Court Justices have had--far from
it. This is relevant not because one has to have prior judicial
experience in order to be a good Supreme Court Justice--that is not my
view now, and it never has been--but the absence of judicial experience
makes it all the more important that we look more closely at the kind
of experience Ms. Kagan has, in fact, had. A review of Ms. Kagan's
experience reveals a woman who has spent much or her adult life not
steeped in the practice of law but in the art of politics.
When we look at her resume, we find a woman who has worked fervently
to advance the goals of the Democratic Party and liberal causes,
usually at the expense of those with whom she disagrees politically or
ideologically. In college, she spent one summer working 14 hours a day
for a liberal Democratic candidate for the U.S. Senate from New York.
When her candidate lost, Ms.

[[Page S6828]]

Kagan wrote that it was her hope that one day a ``more leftist left
will once again come to the fore.''
In fairness, few of us would want everything we said or wrote as
college students put up on a billboard. But the trajectory of Ms.
Kagan's career and the records from her time as a political advisor in
the Clinton White House suggest someone, as one news story put it, who,
long after college and even at the highest peaks of political
influence, was ``driven and opinionated, with a flair for political
tactics. . . .''
What else do we find in Ms. Kagan's resume?
Well, 8 years after that first Senate race, she volunteered for the
Dukakis Presidential campaign, working as an opposition researcher to
defend the then-Governor of Massachusetts from attacks and to look for
ways to attack the Republican opposition. I note her job as an
opposition researcher because it is part of a pattern of partisan
political activity and because Democrats themselves have strongly
questioned the impartiality of Republicans who have held this type of
job.
As a Supreme Court law clerk, Ms. Kagan often inserted her own
personal views into her legal advice. In one case, for example, she was
dismissive of a man's second amendment claim because it was something
that, in her words, she did not find to be ``sympathetic.''
Later, as an aide to President Clinton, she did not serve as an
attorney but as a policy advocate, seeking legal advice rather than
giving it. It was in this role that she helped lead a task force on
changing the Nation's campaign finance laws and gleefully noted when
one specific proposal would disadvantage Republicans. She also went out
of her way to deter lawyers at the Justice Department from officially
noting their serious constitutional concerns with a campaign finance
proposal because it might complicate the pursuit of the Clinton
administration's political goals.
It was also at the Clinton White House that she suggested turning a
routine literacy event at a Maryland school into a chance to score
political points against--you guessed it--Republicans. And it was there
that she went to extraordinary lengths to prevent the enactment of a
ban on partial-birth abortion, a procedure the vast majority of
Americans strongly oppose.
From the Clinton administration, she went on to academia. She had
strongly held views and acted upon them there as well. As dean of
Harvard Law School, she refused to give our military, at all times, the
full and good access to which they are entitled under Federal law.
Indeed, she was so driven by her own personal views on this issue that
she took a position in a case before the Supreme Court that was so
legally dubious that not a single Justice agreed with it.
From Harvard, President Obama--her friend and former colleague at the
University of Chicago Law School--selected her to be his Solicitor
General. I, and the vast majority of my Republican colleagues, voted
against her nomination to that position, given her lack of litigation
experience. Indeed, Ms. Kagan made her first oral argument in any
court, for any purpose, just last year in the Citizens United case.
Having been in the courtroom myself that day, I heard her argue to an
astonished Supreme Court that the power of the Federal Government is so
vast it can ban political speech with which it disagrees, such as
political pamphlets, despite the clear commands of the first amendment
to the contrary.
So when we look at Elena Kagan's background, what we find again and
again is someone who has worked tirelessly to advance a political
agenda or ideology, often at the expense of the law.
Let's look for a moment at her relationship to the current
administration.
We know the President and Ms. Kagan are former colleagues and
friends. We know that the President views her as an important and loyal
member of his team and that he was particularly pleased with her
handling of the Citizens United case. And we know the President is
confident that Ms. Kagan shares his view that judges should be judged
especially on their ability to empathize with some over others--in
other words, that she embraces the so-called empathy standard whereby
judges act on, to quote the President, ``their broader vision of what
America should be,'' which may or may not be what the law says is
required. All of which brings us to the question of whether Ms. Kagan
is suited to sit on the Supreme Court.
We do not have a judicial or private practice record to go to, but
from the record we do have--that of a passionate policy advocate, a
zealous political operative, and a loyal member of the Obama
administration--the President picked precisely--precisely--the kind of
judge he said he would. But is this the end of the inquiry? The
President won the election. Ms. Kagan is bright. She has a good humor.
Does the Constitution suggest that we therefore must assent to her
nomination? Is that what the Founders envisioned?
Well, the Federalist Papers say two things that are particularly
relevant here.
First, let's look at Federalist 76, which gives examples of specific
disqualifiers for confirmation. The common theme for these
disqualifiers is someone who is nominated not because of their
objective qualifications but because of a personal connection to the
Executive--be it friendship, family relationship, or a belief that they
will exhibit a bias. It says the Senate's power to disapprove a nominee
``would be an excellent check upon a spirit of favoritism in the
President, and would tend greatly to prevent the appointment of unfit
characters from State prejudice, from family connection, from personal
attachment, or from a view to popularity.'' That is Federalist 76.
Now let's look at Federalist 78, which talks about the role of the
courts in our democracy and the proper philosophy for a judge. Here,
Hamilton writes that courts may not ``substitute their own pleasure to
the constitutional intentions of the legislature.'' He adds that their
job must be to ``declare the sense of the law'' and that if, instead,
they should exercise their ``WILL''--which he puts in all capital
letters--``the consequence would be . . . the substitution of their
pleasure to that of the legislative body.'' In other words, Hamilton
was cautioning against judges so motivated by their own passions and
sympathies that they would use their judicial power to implement, as
President Obama puts it, ``their broader vision of'' what ought to be.
So while Hamilton, in Federalist 76, listed some of the reasons for
disqualifying a nominee, this was clearly not an exhaustive list.
Surely he did not lay out the critical qualification for a judge in
Federalist 78 and then leave the Senate powerless to enforce it. Both
papers must be read together, not in isolation, which brings us back to
Ms. Kagan.
If you believe the role of a judge is to be an impartial arbiter, Ms.
Kagan's background as a policy advocate and political lawyer--and
oftentimes a very partisan one--cannot be ignored. Indeed, Members of
both parties should appreciate the importance of confirming judges who
are more interested in what the law says than in how the law can be
used to advantage any one side.
As the chairman of the Judiciary Committee once put it:

No one should vote for somebody that's going to be a
political apparatchik for either the Democratic Party or the
Republican Party.

If you believe the role of a judge is to be an impartial arbiter, Ms.
Kagan's relationship to the President can't be ignored either. I think
our friend, the senior Senator from Ohio, put his finger on what
Federalist 76 was talking about in this regard. As he put it earlier
this week:

I would argue that General Kagan has been nominated based
on her friendships and her personal attachments with
President Obama and others at the White House, not based on
objective qualities that would indicate she is qualified to
be a Supreme Court Justice.

As for the empathy standard, well, empathy may be a very good quality
in general, but in a court of law it is only good if you are lucky
enough to be the guy the judge empathizes with. It is only good enough
if you happen to share the judge's ``broader vision of what America
ought to be,'' which is the exact opposite of what the author of
Federalist 78 had in mind.
Let's say you are a pro-life group challenging a restriction on late-
term abortion and you are appearing before a Justice Kagan. In light of
the lengths

[[Page S6829]]

she went to in order to arrive at her preferred result on the subject
of partial-birth abortion, do you think you are going to get a fair
shake?
Let's say you think the government is infringing upon your second
amendment rights. Given that she dismissively said she is not
sympathetic to this sort of challenge, do you think she is going to
apply the law or her own broader vision of how America should be?
Let's say you are a conservative nonprofit group that wants to
publish a pamphlet or show a movie before an election. In other words,
let's say you are a group such as Citizens United. Given her record of
partisan advocacy, how do you think you are going to fare before her in
that case?
Ms. Kagan has never made a secret of her professional aspirations.
She has cultivated all the right friendships along the way, including
the President of the United States. This is all well and good but, in
my view, it strains credulity to think that Ms. Kagan's strong
political views will be more constrained by the Constitution once she
reaches her goal than they have been up until now.
Some of Ms. Kagan's supporters would like us to focus on her
personality. They say she has a knack for making friends and getting
along well with different kinds of people. Once again, these are all
fine qualities. No one has any doubt that Ms. Kagan is bright and
personable and easy to get along with. But the Supreme Court is not a
social club. If getting along in polite society were enough reason to
put someone on the Supreme Court, then we wouldn't need a confirmation
process at all.
The goal was not to determine whether we think someone is smart and
easy going; it is whether someone can be expected to be a neutral and
independent arbiter of the law rather than a rubberstamp for this
administration or for any other.
Whether it is small claims court or the Supreme Court, Americans
expect politics to end at the courtroom door. Nothing in Elena Kagan's
record suggests that her politics will stop there.
Ms. Kagan's background as a political operative, her lengthy resume
of zealous advocacy for political and ideological causes, often at the
expense of the law and those whose views differ from her own, her
attachment to the President and his political and ideological goals,
including his belief in the extraconstitutional notion that judges
should favor some over others, make her precisely the kind of nominee,
in my view, the Founders were concerned about and that Senators should
have reason to oppose.
For these reasons, I will vote against the nominee, and I urge my
colleagues to do the same.
I yield the floor.
The PRESIDING OFFICER. The majority leader is recognized.
Mr. REID. Mr. President, the Republican leader and I recommend that
Senators proceed to the Senate floor to cast their votes. We ask that
Senators be seated when they cast their votes.
Decades before America's founding--when its direction was only
roughly charted and its doctrines still in draft form--a lawyer from
Massachusetts wrote that ours must be a nation of laws and not of men.
That man, John Adams, knew that the rules and rights of a free land
must withstand personal whims and political winds. It is a belief so
basic Adams would later enshrine it in his State's constitution.
Today we will send to our highest Court another brilliant lawyer from
Massachusetts, Elena Kagan, someone whose respect for the rule of law
is matched only by her appreciation for those laws that concern the
daily lives of the people they govern. The roots of General Kagan's
respect for the rule of law are in her respect for our separation of
powers. It is a reverence she developed during her service in all three
branches of government, defending the first and second amendments,
strengthening our national security, and protecting children's safety.
Wherever Elena Kagan has gone throughout her considerable career, she
has succeeded. At Princeton and Oxford, at the law schools at Harvard
and the University of Chicago and back to Harvard once again, in the
private sector and in the highest levels of government, she has brought
together people of every ideological stripe.
In recent weeks, we have again seen how effectively she impresses and
unites those she meets. Look at the incredibly diverse array of people
and organizations speaking in unison in favor of her nomination,
including every Solicitor General, no matter the party, over the last
quarter century. Now she is poised to join a Court whose power she
respects as well as its limits. She understands that the laws are made
only on this side of the street and only interpreted on the other side
of the street.
Our Supreme Court promises equal justice for all who come before its
bench. We must also fulfill the promise of greater equality among those
who sit behind the bench.
Although the Founders did not want ours to be a government of men,
for a long time men were the only ones running it. The most qualified
women were turned away--turned away--one after another. Justice
O'Connor graduated third in her law school class at Stanford, one of
the premier law schools in this country, while others her age were just
finishing college. The only job offer she got after graduating third in
her class was a job as a legal secretary.
Justice Ginsburg graduated first in her law school class at Columbia,
another premier law school, but not a single law firm would hire her
either. She was denied a clerkship not by one but two Supreme Court
Justices because, as they readily admitted, she was a woman.
It took nearly 200 years before the Court welcomed Sandra Day
O'Connor as its first woman and more than a decade longer before Ruth
Bader Ginsburg would join her as its second. A year ago today, Ginsburg
was the only woman Justice, but when it opens this fall, three women--a
full third of the bench--will preside together for the first time. That
is progress. It is not yet completely equitable in a nation where women
represent more than one-half the population, but it certainly is
progress.
That Sotomayor and Kagan can join the Court in such relatively rapid
succession is a tribute to the path their predecessors cleared.

Justice Ginsburg said last year that ``women belong in all places
where decisions are being made.'' The Supreme Court is certainly one of
those places. Elena Kagan is certainly one of those women.
As the Senate votes for this nominee on her merits, we are also
voting for the most inclusive Court in its long history. It will be
even more inclusive when we confirm more Justices who don't come from
Ivy League schools.
In the oath General Kagan will soon take--the same oath sworn by 111
Justices before her--she will pledge to ``do equal right to the poor
and to the rich.'' That is a commitment her predecessor, Justice John
Paul Stevens, always fulfilled. We are grateful for Stevens' long
record of service as a decorated war veteran, a successful lawyer, and
an impartial judge and Justice who summoned common sense in his
opinions. He was always passionate but always a gentleman.
Stevens once wrote: ``Corporations are not part of `We, the People'
by whom and for whom our Constitution was established.'' General Kagan
believes that too. It is the principle she defended in her first case
as the first female Solicitor General; that is, our country's chief
lawyer, when she fought to stop foreign and domestic corporations from
drowning out American voters' voices. She knew it would not be an easy
case, but she stood for fairness, transparency, and citizens' rights
because that is what a nation of laws demands.
General Kagan learned from another trailblazing Justice and her
personal hero, Thurgood Marshall, that behind the law lived real
people. She knows the Court's rulings can affect working families as
intimately as they do wealthy interests.
The American people deserve a Justice who understands that one
litigant's case is no more justified simply because he has more money
than his opponent. Elena Kagan will be that Justice.
We need a voice on the Supreme Court who remembers and reveres the
rights of individuals, not because people are always right and
corporations are always wrong but because the argument of even the
poorest citizen should be heard just as loudly, with the same patience
and deliberation and impartiality as that of the richest firm.

[[Page S6830]]

Elena Kagan has demonstrated, time and time again, that she
understands that.
In fact, listening is one of her strong suits. Justice Stevens often
said that openly debated differences benefit democracy and he promoted
what he called ``understanding before disagreeing.'' The lawyer and
teacher the President has chosen to succeed Justice Stevens believes
the same.
When General Kagan spoke last year to graduates of Harvard Law
School, where she was beloved by the students and faculty alike, she
reminded them: ``You only learn something when your ears are open, not
when your mouth is open.'' That shows wisdom. It takes a smart person
to recognize that we make progress and make the right decisions when we
approach each person and each problem with an open mind. It takes a
smarter one to say as much.
So I hope each Senator will approach this vote the way General Kagan
will approach each question that comes before the Court: with deference
to the facts, the evidence, and our shared national interests.
General Kagan is a public servant who has remained far above the
political fray and will be the only Justice who comes from outside the
judicial monastery. She is a student and teacher of the law who looks
up from her books out into the real world. She knows that while we are
a nation of laws and not of men, the former has a genuine and personal
impact on the lives of the latter.
Because of her intellect and integrity; her reason, restraint, and
respect for the rule of law; her unimpeachable character and unwavering
fidelity to our Constitution, I am proud to cast my vote for Elena
Kagan's confirmation to be a Justice of the U.S. Supreme Court.
We are going to wait until the hour of 3:30 arrives before we start
to vote. Senator Leahy, at that time, will have a request to make.
The PRESIDING OFFICER. The Senator from Vermont is recognized.
Mr. LEAHY. Mr. President, I ask for the yeas and nays on the
nomination of Elena Kagan to be an Associate Justice on the Supreme
Court of the United States.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The question is, Will the Senate advise and consent to the nomination
of Elena Kagan, of Massachusetts, to be an Associate Justice of the
United States Supreme Court?
The clerk will call the roll.
The legislative clerk called the roll.
The result was announced--yeas 63, nays 37, as follows:

[Rollcall Vote No. 229 Ex.]

YEAS--63

Akaka
Baucus
Bayh
Begich
Bennet
Bingaman
Boxer
Brown (OH)
Burris
Cantwell
Cardin
Carper
Casey
Collins
Conrad
Dodd
Dorgan
Durbin
Feingold
Feinstein
Franken
Gillibrand
Goodwin
Graham
Gregg
Hagan
Harkin
Inouye
Johnson
Kaufman
Kerry
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lugar
McCaskill
Menendez
Merkley
Mikulski
Murray
Nelson (FL)
Pryor
Reed
Reid
Rockefeller
Sanders
Schumer
Shaheen
Snowe
Specter
Stabenow
Tester
Udall (CO)
Udall (NM)
Warner
Webb
Whitehouse
Wyden

NAYS--37

Alexander
Barrasso
Bennett
Bond
Brown (MA)
Brownback
Bunning
Burr
Chambliss
Coburn
Cochran
Corker
Cornyn
Crapo
DeMint
Ensign
Enzi
Grassley
Hatch
Hutchison
Inhofe
Isakson
Johanns
Kyl
LeMieux
McCain
McConnell
Murkowski
Nelson (NE)
Risch
Roberts
Sessions
Shelby
Thune
Vitter
Voinovich
Wicker
The nomination was confirmed.
The PRESIDING OFFICER. A motion to reconsider this vote is considered
made and laid on the table. The President shall be notified of the
Senate's action.
Mr. LEAHY. Mr. President, the Senate has concluded our consideration
of the nomination of Elena Kagan and confirmed her as an Associate
Justice on the U.S. Supreme Court. For the second time in 2 years, we
have considered a nomination for a lifetime appointment to the Supreme
Court, one of our most consequential responsibilities. I am proud that
process we followed in considering this nomination in the Judiciary
Committee and in the Senate has garnered praise from many Senators for
its fairness and thoroughness.
We could not have given this nomination the attention it deserved
without the help of dedicated staff. For months, the staff of the
Judiciary Committee has worked long hours dutifully to obtain and
review extensive amounts of documents and information and help Senators
in our review. I wish to thank the following members of the majority
staff in particular, Jeremy Paris, Erica Chabot, Kristine Lucius,
Shanna Singh Hughey, Maggie Whitney, Hasan Ali, John Amaya, Sarah
Hackett, Sarah Hasazi, Michael Gerhardt, Elise Burditt, Noah
Bookbinder, Anya McMurray, Liz Aloi, Tara Magner, Kelsey Kobelt, Juan
Valdivieso, Matt Virkstis, Curtis LeGeyt, Roslyne Turner, Erin O'Neill,
Julia Gagne, Brian Hockin, Joseph Thomas, Elizabeth Saxe, Katharine
McFarland, Miles Clark, Christine Paquin, David
Zayas, Lydia Griggsby, Adrienne Wojciechowski, Dan Taylor, Patrick
Sheahan, Matt Smith, Scott Wilson, Kiera Flynn, Rachel Pelham, Bree
Bang-Jensen, Chuck Papirmeister, and Bruce Cohen. I also thank my staff
for their hard work on this nomination, in particular, Edward Pagano,
David Carle, Laura Trainor, and Kevin McDonald. I would also like to
thank Stacy Rich from Senator Murray's staff who helped manage the
floor.
I commend and thank the hard-working staffs of the other Democratic
members of the Judiciary Committee for their tremendous contributions
to this effort.
I also commend and thank Senator Sessions, the committee's ranking
Republican, and his staff, in particular, Brian Benczkowski, Danielle
Cutrona, Ted Lehman, and Lauren Pastarnack, for their hard work and
professionalism.

____________________