[Congressional Record (Bound Edition), Volume 155 (2009), Part 6]
[Senate]
[Pages 8030-8047]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF ELENA KAGAN TO BE SOLICITOR GENERAL OF THE UNITED STATES

  The PRESIDING OFFICER (Mr. Brown). Under the previous order, the 
Senate will proceed to executive session to consider the following 
nomination, which the clerk will report.
  The legislative clerk read the nomination of Elena Kagan, of 
Massachusetts, to be Solicitor General of the United States.
  The PRESIDING OFFICER. There is now 6 hours of debate on the 
nomination, equally divided between Senator Leahy, the Senator from 
Vermont, and Senator Specter, the Senator from Pennsylvania.
  Mr. LEAHY. Mr. President, before we begin, I know that a number of 
people--I see Senator Grassley, Senator Kohl, and Senator Cardin on the 
floor--a number of people have asked me--I hope we will not be taking 
the full 6 hours. I have not discussed this with Senator Specter, so I 
cannot speak for him. A few of us are going to speak briefly. I hope at 
some point we will be able to yield back the remainder of our time and 
go to the vote. I know a number of Senators, especially Senators from 
the west coast of both parties, tell me they want to try to reach 
planes later today. And with the weather, there is some problem. So I 
hope we might be able to yield back time.
  Today, the Senate considers the nomination of Elena Kagan to be 
Solicitor General of the United States. It is fitting that we consider 
this historic nomination this month--and I think of my wife, my 
daughter, and my three granddaughters--because, of course, this is 
Women's History Month. When Elena Kagan is confirmed, she is going to 
become the first woman to serve as Solicitor General of the United 
States.
  Nearly 10 years ago, President Clinton nominated Elena Kagan for a 
seat on the Court of Appeals for the DC Circuit. At that time, she had 
served as a clerk for Supreme Court Justice Thurgood Marshall and for 
Judge Abner Mikva on the DC Circuit, a law professor at the University 
of Chicago, Special Counsel to the Senate Judiciary Committee, 
Associate Counsel to the President of the United States, Deputy 
Assistant to the President for Domestic Policy, and Deputy Director of 
the Domestic Policy Council. Her credentials also included two years at 
Williams and Connolly and a stellar academic career, graduating with 
honors from Princeton, Oxford, and Harvard Law School, where she was 
Supervising Editor of the Harvard Law Review. Despite her outstanding 
record, the then-Republican majority on the Judiciary Committee refused 
to consider her nomination. In a move that

[[Page 8031]]

was unprecedented, she was among the more than 60 highly qualified 
Clinton nominees that were pocket-filibustered. No Senate majority--
Democratic or Republican--has ever done anything like that before or 
since. Apparently, they felt she wasn't qualified. So she returned to 
teaching, becoming a professor at Harvard Law School and, in 2003, she 
became the first woman to be dean of Harvard Law School.
  Now, I mention that not just because Elena Kagan reached one of the 
pinnacles of the legal profession, but in that position, she earned 
praise from Republicans and Democrats, as well as students and 
professors, for her consensus-building and inclusive leadership style. 
She broke the glass ceiling. Now Dean Kagan is poised to break another 
glass ceiling. Similar to Justice Thurgood Marshall, for whom she 
clerked, she would make history if confirmed to what Justice Marshall 
described as ``the best job he ever had.'' I hope that today the Senate 
will finally confirm her as President Obama's choice to serve the 
American people as our Solicitor General.
  Two weeks ago Dean Kagan's nomination was reported out of the Senate 
Judiciary Committee, 13 Senators voted in favor, only 3 opposed. 
Senator Kyl, the Assistant Republican Leader, and Senator Coburn voted 
in favor of the Kagan nomination, and I commend them. Just as I voted 
for President Bush's nominations of Paul Clement and Gregory Garre to 
serve as Solicitor General, Senator Kyl and Senator Coburn looked past 
the differences they might have with Dean Kagan's personal views, and 
recognized her ability to serve as Solicitor General.
  I am disappointed that after 2 weeks, with so many critical matters 
before the Senate, the Republican Senate minority has insisted on 6 
hours of debate on a superbly qualified nominee who has bipartisan 
support. Democrats did not require floor time to debate the nominations 
of President Bush's last two Solicitors General, Paul Clement and Greg 
Garre, who were both confirmed by voice vote.
  Even the highly controversial nomination of Ted Olson to be Solicitor 
General, following his role in the Florida recount and years of 
partisan political activity, was limited in early 2001 to less time. He 
was eventually confirmed by a narrow margin, 51 to 47. That was the 
exception. Other than that controversial nomination, every Solicitor 
General nomination dating back a quarter century has been confirmed by 
unanimous consent or voice vote with little or no debate.
  Just last week, the Republican Senate minority insisted on 7 hours of 
debate on the Deputy Attorney General nomination before allowing a 
vote. Of course, after forcing the majority leader to file for cloture 
to head off a filibuster and then insisting on so much time, the 
Republican opposition to that nomination consumed barely 1 hour with 
floor statements.
  I wish instead of these efforts to delay and obstruct consideration 
of the President's nominees, the Republican Senate minority would work 
with us on matters of critical importance to the American people. I 
will note just one current example. Two weeks ago the Senate Judiciary 
Committee reported an antifraud bill to the Senate. The Leahy-Grassley 
Fraud Enforcement and Recovery Act, S. 386, needs to be considered 
without delay. It is an important initiative to confront the fraud that 
has contributed to the economic and financial crisis we face, and to 
protect against the diversion of Federal efforts to recover from this 
downturn.
  As last week's front page New York Times story and the public's 
outrage over the AIG bailout remind us, holding those accountable for 
the mortgage and financial frauds that have contributed to the worst 
economic crisis since the Great Depression is what the Senate should be 
spending its time considering. We have a bipartisan bill that has the 
support of the United States Department of Justice. It can make a 
difference. In addition to Senator Grassley, Senator Kaufman, Senator 
Klobuchar, Senator Schumer and Senator Shelby have worked with us on 
that measure. I would much rather be spending these 6 hours debating 
and passing that strong and effective antifraud legislation.
  Our legislation is designed to reinvigorate our capacity to 
investigate and prosecute the kinds of frauds that have undermined our 
economy and hurt so many hardworking Americans. It provides the 
resources and tools needed for law enforcement to aggressively enforce 
and prosecute fraud in connection with bailout and recovery efforts. It 
authorizes $245 million a year over the next few years for fraud 
prosecutors and investigators. With this funding, the FBI can double 
the number of mortgage fraud taskforces nationwide and target the 
hardest hit areas. The bill includes resources for our U.S. attorneys 
offices as well as the Secret Service, the HUD Inspector General's 
Office and the U.S. Postal Inspection Service. It includes important 
improvements to our fraud and money laundering statutes to strengthen 
prosecutors' ability to confront fraud in mortgage lending practices, 
to protect TARP funds, and to cover fraudulent schemes involving 
commodities futures, options and derivatives as well as making sure the 
government can recover the ill-gotten proceeds from crime.
  I have been trying to get a time agreement to consider the measure 
ever since March 5 when the Judiciary Committee reported it to the 
Senate. We can help make a difference for all Americans. Instead of 
wasting our time in quorum calls when no one is speaking, or demanding 
multiple hours of debates on nominations that can be discussed in much 
less time before being confirmed, let us work on matters that will help 
get us out of the economic ditch that we have inherited from the 
policies of the last administration and let us begin to work together 
on behalf of the American people.
  The Kagan nomination is not controversial. Every Solicitor General 
who served from 1985 to 2009 has endorsed her nomination--Republicans 
and Democrats from across the political spectrum. They include: Charles 
Fried, Ken Starr, Drew Days, Walter Dellinger, Seth Waxman, Ted Olson, 
Paul Clement and Greg Garre. In their letter of support, they wrote:

       We who have had the honor of serving as Solicitor General 
     over the past quarter century, from 1985 to 2009, in the 
     administrations of Presidents Ronald Reagan, George H..W. 
     Bush, William Clinton, and George W. Bush, write to endorse 
     the nomination of Dean Elena Kagan to be the next Solicitor 
     General of the United States. We are confident that Dean 
     Kagan will bring distinction to the office, continue its 
     highest traditions and be a forceful advocate for the United 
     States before the Supreme Court.

  Prominent lawyers who served in the Office of the Solicitor General 
in Republican and Democratic administrations have written to praise 
Dean Kagan's ``great legal and personal skills, intellect, integrity, 
independence and judgment,'' concluding that ``she has all the 
attributes that are essential to an outstanding Solicitor General.''
  Deans of 11 of some of the most prominent law schools in the country 
describe Dean Kagan as ``a person of unimpeachable integrity'' who 
``has been a superb dean at Harvard where she has managed to forge 
coalitions, attract excellent faculty, and satisfy demanding 
students.'' They call her ``superbly qualified to fulfill the role of 
representing the United States in the Supreme Court.'' If there were an 
equivalent to the ABA rating for judicial nominees, hers would be well-
qualified.
  One of the conservative professors Dean Kagan helped bring to Harvard 
Law School was Professor Jack Goldsmith, who took charge of the Office 
of Legal Counsel after the disastrous tenures of Jay Bybee and John 
Yoo. Professor Goldsmith, a conservative, praised Dean Kagan as someone 
who will ``take to the Solicitor General's Office a better 
understanding of the Congress and the Executive branch that she will 
represent before the Court than perhaps any prior Solicitor General.''
  Iraq war veterans wrote a letter to the editor of the Washington 
Times stating that Dean Kagan ``has created an environment that is 
highly supportive of students who have served in

[[Page 8032]]

the military,'' describing the annual Veterans Day dinner for former 
service members and spouses that she hosts, and the focus she has 
placed on veterans at Harvard Law School and the military experience of 
students.
  Dean Kagan has taken every conceivable step to meet with Republican 
Senators and to respond to their supplemental questions to her. Just 
this week she responded to a letter from the ranking Republican Senator 
on the committee with extensive written materials. Her answers during 
her hearing, in her written follow-up questions and then, again, in 
response to Senator Specter's letter, were more thorough than any 
Solicitor General nominee in my memory. They are light years better 
than those provided by Ted Olson or other nominees of Republican 
Presidents. I hope that we will not see Senators applying a double 
standard to her and her answers. Those who voted for Ted Olson and Paul 
Clement and Greg Garre based on their answers can hardly criticize Dean 
Kagan.
  Dean Kagan went above and beyond to provide more information than 
previous nominees. She did not draw the line as Senator Specter has 
previously complained, at saying only as much as needed to get 
confirmed by a majority vote. Instead, she went well beyond that to 
disclose as much about her personal views as she thought she could 
consistent with her duties. As she explained in her March 18, 2009, 
letter to Senator Specter:

       [T]he Solicitor General is acting not as policymaker, but 
     as a lawyer representing the long-term interests of the 
     United States. The Solicitor General would make decisions . . 
     . based not on personal views, but on determinate federal 
     interests. And the Solicitor General's office has 
     longstanding and rigorous processes in place, usually 
     involving numerous client agencies and components, to 
     identify and evaluate the nature and extent of these 
     interests.

  Dean Kagan has shown that she has a deep understanding of the role of 
the Solicitor General and her exemplary record makes her well qualified 
to fulfill those important duties. Last week, when establishing the 
White House Council on Women and Girls, President Obama noted: 
``[T]oday, women are serving at the highest levels in all branches of 
our Government.'' Let us not take a step backward to the days when 
women were not allowed to be lawyers or hold the top jobs. I think of 
the history of when Sandra Day O'Connor graduated from Stanford Law 
School with a stellar academic record and was told she could only have 
a secretarial job because, after all, she was a woman. Some woman. She 
became one of the most prominent members of the U.S. Supreme Court.
  It is time for breaking through barriers. It is interesting when you 
look at the quality of these people. When Sandra Day O'Connor was 
nominated, one of my close friends in the Senate, who was her primary 
supporter, Senator Barry Goldwater of Arizona, brought her to my 
office. He said:

       You know, sometimes she will probably vote ways I will 
     disagree with; sometimes I will agree with her. I am not 
     asking her how she is going to vote on issues, I am just 
     asking her to be honest and fair and use her great talent. 
     That is all anybody can ask for.

  She was confirmed, of course, unanimously.
  Barry Goldwater was right. I believe I am, too, when I say it is time 
for breaking through barriers for this highly qualified person. It is 
also a time for our daughters and granddaughters to see a woman serving 
as a chief legal advocate on behalf of the United States.
  I urge all Senators to support President Obama's nomination and vote 
to confirm Elena Kagan to be Solicitor General of the United States.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CARDIN. 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. CARDIN. Mr. President, when President Obama nominated Elena Kagan 
to be the Solicitor General of the United States, I must tell you, I 
was extremely pleased because I knew of her reputation, I knew of her 
background, and I thought she would be an excellent choice to be the 
Solicitor General of the United States.
  Chairman Leahy allowed me to chair the hearing on her confirmation. 
At that hearing, there were spirited questions asked by many members of 
the Judiciary Committee. We had a chance to review the background 
record we go through in the confirmation process. Ms. Kagan responded 
to the questions of the committee members.
  I must tell you, I was even more impressed with this individual to be 
Solicitor General of the United States. I thought she did an excellent 
job in responding to the questions of the committee and answering them 
with candor and giving great confidence that she will represent the 
United States well before the courts of this country.
  The Solicitor General has to appear before the Supreme Court. The 
Supreme Court Justices can be very difficult in their questioning, as 
can Members of the Senate during confirmation. I think Elena Kagan 
demonstrated her ability to represent our Nation well as the Solicitor 
General of the United States.
  She comes to this position very well qualified, as far as her 
experience is concerned. I know Chairman Leahy has spoken frequently 
about the need to continue to restore the morale and integrity of the 
Department of Justice which has been battered in recent years. I think 
Elena Kagan will help us restore the reputation of the Department of 
Justice and help us because of her dedication--and experience--to 
public service.
  She brings a wide range of service, having served as dean of a law 
school, a law professor, a senior official at the White House, a lawyer 
in private practice, a legal clerk for a Justice of the Supreme Court.
  A graduate from Princeton University and Harvard Law School, Ms. 
Kagan clerked for Justice Thurgood Marshall on the Supreme Court and 
then worked as an associate at the Washington law firm of Williams & 
Connolly. While teaching law at the University of Chicago, she took on 
another special assignment as special counsel to Senator Joe Biden who 
was then chairman of the Judiciary Committee. Ms. Kagan assisted in the 
confirmation hearings of Supreme Court Justice Ruth Bader Ginsburg.
  Then in 1995, Ms. Kagan returned to public service to serve as 
President Clinton's associate White House counsel, Deputy Assistant to 
the President for Domestic Policy, and Deputy Director of the Domestic 
Policy Council. So she has a combined academic background as well as 
public service.
  In 1999, Ms. Kagan left Government and began serving as a professor 
at Harvard Law School, teaching administrative law, constitutional law, 
civil procedures, and a seminar on legal issues and the Presidency.
  In 2003, she was appointed to serve as the dean of the Harvard Law 
School, becoming the first woman ever to be dean in that school's 
history.
  We have a lot of information that we gather during the confirmation 
process. One of the most impressive letters was a letter we received 
from the deans of 11 major law schools in support of the nomination. 
These are your colleagues. They know you best. They know your 
qualifications.
  The letter states in part that the Office of Solicitor General is a 
job that ``requires administrative and negotiation skills as well as 
legal acumen, and Elena Kagan excels along all relevant dimensions. Her 
skills in legal analysis are first rate. Her writings in constitutional 
and administrative law are highly respected and widely cited. She is an 
incisive and astute analyst of law, with a deep understanding of both 
doctrine and policy. . . . Ms. Kagan is also an excellent manager. She 
has been a superb dean at Harvard . . . Finally, Elena Kagan is known 
to us as a person of unimpeachable integrity.''
  The Solicitor General of the United States holds a unique position in 
our Government. The Solicitor General is charged with conducting all 
litigation on behalf of the United States in the Supreme Court and is 
often referred to as the ``10th Justice.'' Indeed, the Supreme Court 
expects the Solicitor General to provide the Court with candid

[[Page 8033]]

advice during oral argument and the filing of briefs on behalf of the 
United States. The office participates in about two-thirds of all the 
cases the Court decides on the merits each year.
  So it is indeed high praise for Dean Kagan that former Solicitors 
General Walter Dellinger and Ted Olson joined with six other Solicitors 
General from both parties--Democrats and Republicans--to write a letter 
endorsing her nomination. If I might, I would like to quote from the 
letter from the former Solicitors General who endorse Ms. Kagan's 
nomination to be Solicitor General of the United States. The letter 
states, in part:

       We are confident that Dean Kagan will bring distinction to 
     the office, continue its highest traditions and be a forceful 
     advocate for the United States before the Supreme Court. 
     Elena Kagan would bring to the position of Solicitor General 
     a breadth of experience and a history of great accomplishment 
     in the law. We believe she will excel at this important job 
     of melding the views of various agencies and departments into 
     coherent positions that advance the best interests of our 
     national government. She will be a strong voice for the 
     United States before the Supreme Court. Her brilliant 
     intellect will be respected by the Justices, and her 
     directness, candor and frank analysis will make her an 
     especially effective advocate.

  At the same time, we want the Solicitor General to be independent. 
That person must exercise independent judgment in representing the best 
interests of the United States before the Court. Ms. Kagan has shown 
that independence throughout her career, but she also understands she 
must follow the law. Let me cite one final letter in support of Ms. 
Kagan's nomination. The letter is from former Deputy Attorney General 
Jamie Gorelick and former Attorney General Janet Reno. The letter notes 
that Elena Kagan would be the first woman to hold this office and that 
the confirmation will:

       . . . represent an important milestone for the Department 
     of Justice and for women in the legal profession. We have no 
     hesitation in concluding that Kagan possesses the skills and 
     character to excel in the position for which she has been 
     nominated.

  Tomorrow will mark President Obama's 60th day in office, and I think 
it is fitting that today we are on the verge of confirming Elena 
Kagan's nomination so she can join with the Attorney General in helping 
to restore the competence of the Department of Justice for the American 
people. I am certain she will make an excellent Solicitor General, and 
I hope we will promptly confirm her nomination.
  With that, I yield the floor.
  Mr. LEAHY. I wish to thank the distinguished Senator from Maryland, 
who is a valuable member of the Senate Judiciary Committee, for 
stepping in on such short notice when I had to step off the floor.
  I have asked my colleagues on the other side--and I know this is 
something that is being looked at because we have both Republicans and 
Democrats, as I said earlier, trying on a rainy day to move around 
airplane schedules--if we might be able to have the vote very soon but 
to reserve the time for Senators who have asked to speak on this 
subsequent to the vote.
  There are no Republicans on the floor at the moment, so I am 
obviously not going to make a unanimous consent request, but were I to 
make a unanimous consent request, it would be after consultation with 
the Republican side that we go ahead and have the rollcall vote and 
then continue whatever time is necessary for debate.
  So I mention that is a request I will make at some point, when there 
is somebody to represent the Republican leader on the floor.
  Until then, I suggest the absence of a quorum, and I ask unanimous 
consent that the time be charged to both sides equally.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Udall of Colorado). Without objection, it 
is so ordered.
  Mr. DURBIN. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Mortgage Cram-down

  Mr. DURBIN. Mr. President, you are from the State of Ohio; I am from 
the State of Illinois. We face similar circumstances when it comes to 
mortgage foreclosures. Lots of the best and strongest cities in my 
State, large and small, are being inundated with mortgage foreclosures.
  Now, this started off with this predatory trap where a lot of people 
were lured into mortgages they could not afford. But there was a 
mortgage broker telling them: It will all work out. The price of your 
home is going to go up, and it is going to be a good source for you to 
borrow money in the future. So stretch a little. Trust me. You can make 
these payments, and a year from now, or when the mortgage readjusts, 
everything is going to be just fine.
  It did not work that way. Some people went into these mortgage 
agreements and negotiations without the equipment to understand what 
they were getting into.
  I am a lawyer by training. I have been through a lot of closings for 
real estate. We all know what it is about. They sit you in a room, your 
wife by your side, and put a stack of papers in front of you. They 
start turning the corners, talking faster than any salesman you have 
ever run into, telling you: Do not worry about this one, sign it. Do 
not worry about this one, sign it. It is routine, required by Federal 
law--on and on and on. Pretty soon, with your hand weary at the end of 
half an hour or so, you have signed 30 or 40 documents. They hand you 
the paper and say: The first payment is due in 60 days. I know you are 
going to love this place.
  That is what most closings are all about. Not many lawyers and very 
few purchasers stop them and say: I want to read this document. Can you 
tell me what paragraph 6 means? Are you sure I am understanding 
everything this means?
  Most of the time, the average people in America are at the mercy of 
the folks sitting around them. They are bankers, they are lawyers, real 
estate agents. They are at their mercy and, unfortunately, under some 
circumstances, some people were misled into mortgage arrangements which 
were just plain wrong.
  For the longest time we went through something called no-doc 
mortgages. Do you know what that means? No documentation.
  How much money do you make?
  Oh, I don't know, $50,000.
  How much debt do you have?
  Oh, I don't know, maybe $10,000.
  You qualify.
  Do you need some documentation?
  No, we have to move this through fast. We need to capture an interest 
rate.
  This sort of thing was the height of irresponsibility. At the end of 
the day, people ended up with these subprime mortgages for homes they, 
frankly, could not afford, and the day quickly came when this house of 
cards literally collapsed, and mortgages started being foreclosed 
across America.
  Well, it is not just your neighbor's problem when a house is 
foreclosed upon. It is your problem too. Even if you are making your 
mortgage payment, that neighbor's misfortune just affected the value of 
the home you hold near and dear. That neighbor's inability or failure 
to pay the mortgage payment is going to affect the value of your home 
where you just made the mortgage payment and continue to. That is the 
reality.
  The Chicago Sun Times recently reported on the situation of Chris and 
Marcia Parker. They are in the south suburb of Thornton just outside 
Chicago. They live in a small brick home that Marcia's father built in 
the early 1950s. She grew up in the house. The couple moved back home 
to take care of her elderly mother.
  At the time they took out a mortgage to pay for a new roof and a new 
furnace. They ran a small business, but the business failed, causing 
them to file for bankruptcy. They both landed new jobs with the same 
company, but were then laid off at the same time last July because of 
the recession.

[[Page 8034]]

  Chris, the husband, found a new job; Marcia has not. Now they are 
falling behind on their mortgage. They put up for sale the house 
Marcia's father built. They could not find a buyer. They have now 
received a foreclosure notice. The foreclosure could happen as early as 
a week from now. They are trying to reach the lender and work out an 
arrangement to stay in the home her parents built. Worse, they cannot 
find a place to rent because their previous bankruptcy, based on the 
failing small business, they have no idea where they are going to live 
and whether they will lose their home.
  Does this sound like a deadbeat couple to you? It does not to me. It 
sounds like a couple that has fallen on misfortune, tried their best, 
tried to get back on their feet, and they keep stumbling and falling 
again despite their best efforts. This family was not reckless. They 
were not speculators in the market. We are talking about a house her 
parents built. They did not buy too much house.
  This is a story of a family who has tried to do the right thing and 
is facing the very real possibility of losing their family home and 
having nowhere to turn. It is happening over and over again.
  In Chicago, there were nearly 20,000 homes last year which entered 
the foreclosure process. This map tells the story. It looks like this 
great city of Chicago with the measles. Well, it turns out to be this 
great city of Chicago with a reflection on the 2008 foreclosure 
filings.
  Get down here around Midway Airport where I travel a lot--I go to 
O'Hare a lot, too, I might add--and take a look at what is going on in 
these neighborhoods, in these plots. I took a look at one specific Zip 
Code right around Midway Airport, and I looked at it visually closely. 
I could only find five blocks in that Zip Code that did not have at 
least one home in mortgage foreclosure.
  Now, if you traveled to these homes, you might notice them when you 
are flying in and out of the city. These are neat little brick bungalow 
homes, not lavish homes, basic two- and three-bedroom homes where folks 
spend the extra dollars to finish the basement, put in an above-ground 
pool in the backyard, or try to put something in the attic where the 
kids can sleep over if they want to. These are basic middle-class 
family homes, and folks are losing them right and left.
  Now, 2 weeks ago I went to Albany Park. That is on the north side of 
the city of Chicago--again, neighborhood after neighborhood of neat 
little family homes where people care, where the homes are well taken 
care of, little garden plots and flowers and decorative efforts by them 
to make sure their home looks special. Smack dab in the middle of that 
area was a building, a three-story building that had been, I guess, 
developed originally as a condo. When they could not sell the condos, 
they developed it into apartments, and then mortgage foreclosure. That 
is now boarded up. It has been vandalized by gangs that go in and rip 
out the copper piping and everything they can get their hands on. The 
drug gangs hang out there.
  I stood around that neighborhood with the neighbors, many of whom 
were elderly people, folks who have accents because they came to this 
country and worked hard and now want to retire. They looked at me and 
said: Senator, what are you going to do about this? This mortgage 
foreclosure on our block is changing our lives. We put all of our lives 
in that home, and now this monstrosity of a foreclosure is destroying 
our property value.
  Well, I have been involved in an effort for 2 years to do something 
about this, 2 straight years. I am still trying. And here is what it 
is. If you go into bankruptcy, if you have more debts than you have 
assets, the court right now can take a look at your debts. In some 
instances, they can try to restructure the debt so you can pay it off.
  If you have a vacation home in Florida, the bankruptcy judge can say: 
Well, rather than foreclose your vacation home in Florida, we think you 
have enough income coming in that we will work with the lender and try 
to make the mortgage terms work. If you own a farm, we can work with 
the lender to make the mortgage terms work. If you own a ranch, same 
situation. Same thing on that boat, on that car, on that motorcycle; we 
can do it--with one exception.
  Do you know what the exception is? Your private residence. Your 
personal home. The bankruptcy court is prohibited by law from looking 
at that mortgage and saving your home. They can save your vacation 
condo, your ranch, your farm, all of these other things. They cannot 
save your home.
  It makes no sense. If your home means as much to you as it does to my 
family and most families, you would think that would be a high 
priority. Who resists this? The banks do and the mortgage bankers do. 
They have given it this nice, negative name: cram-down. We are going to 
let the bankruptcy court cram down that mortgage on your home.
  Boy, they sure did not use cram-down when it came to vacation homes 
or farms or ranches, but now they want to stop it. Why? Because many of 
them do not want to negotiate a new mortgage. It makes no sense.
  A bank, when a mortgage goes into foreclosure, will lose at least 
$50,000 on that mortgage foreclosure--at least, with legal fees and 
other expenses. And in 99 percent of the cases in mortgage foreclosure, 
the house ends up on the inventory of the bank. That banker who sits 
behind the desk at your local bank now has to worry about who is going 
to cut the grass, who is going to drive by to make sure the home is not 
being vandalized, how in the world they are going to sell it.
  What we are trying to do is set up a process so these homes facing 
foreclosure, thousands and thousands of homes in the city of Chicago 
which I am honored to represent, and millions of people across America 
have a fighting chance.
  Now, I have made concessions. I have worked on compromises over the 2 
years. Some of the financial institutions are finally saying: All 
right, we will talk to you. When I started working on this problem 2 
years ago, they predicted as many as 2 million families in America 
could lose their homes. They predicted 2 million. We were told by the 
lending industry that those estimates were grossly exaggerated: 2 years 
ago, 2 million.
  Goldman Sachs now estimates as many as 13 million homes could be lost 
to foreclosure in the next 5 years. That is one out of every four 
private residences in America lost to foreclosure, a foreclosed home on 
every block in every city in every State in America, on average. That 
is the reality and the truth of this crisis.
  Last year when I called up this bill, they said: Durbin, there you go 
again. You are exaggerating it. It is not going to be that bad. We will 
take care of the problem. Well, we gave them all of the help to take 
care of it, the voluntary programs, and at the end of the day, where 
are we? We are in a desperate position in this country where we have to 
step up and finally break this cycle of mortgage foreclosures.
  Both sides have to give. I have been willing to compromise, some of 
the banking institutions have been, to make sure people go into the 
bank before they go into bankruptcy court, to give them a chance to 
work out the terms of a mortgage they can afford so they can stay in 
their homes and neighborhoods can be stabilized.
  That is why I fully support President Obama's plan to help 3 to 4 
million homeowners save their homes by modifying their mortgages to 
make them more affordable. The plan creates incentives that we need so 
that banks will finally do what has not been done for 2 years: 
aggressively modify loans so foreclosures can be avoided. That is in 
the best interests of homeowners and banks.
  But this plan is voluntary. Voluntary plans have successively failed. 
Every time we have said to the financial institutions: We will leave it 
up to you, you decide whether you want to do something, nothing is done 
of any major consequence. If the lenders don't want to participate in 
the President's plan or previous plans, they don't have to.

[[Page 8035]]

  The program pays servicers taxpayer money to offer loan modifications 
that may not be enough. We need to have at the end the possibility--not 
the probability but the possibility--that the bankruptcy court will 
have the last word. That is why the administration has included my plan 
in their proposal. The President supports my change in the Bankruptcy 
Code to allow mortgages on primary residences to be modified in 
bankruptcy just as other debts. If banks don't want judges to modify 
mortgages for them, they will be far more likely to do it themselves. 
How would it work? Only families living in the home would qualify. This 
isn't for speculation. This isn't for that extra condo you bought 
somewhere in hopes that you could turn a buck. It is your primary 
residence, the one you live in. Only mortgages for which the 
foreclosure process has started are eligible. No one who can pay their 
current mortgage can have a judge change those terms. Judges would be 
limited in how they can modify the mortgages. They could never create a 
mortgage that would create a worse result for the bank than 
foreclosure.
  If this bill passes, taxpayers don't lose a buck, and we could have a 
positive result where many people could win. The mortgages that are 
modified in bankruptcy will provide far more value to lenders and 
investors than foreclosure.
  Best of all, there is no expense to taxpayers.
  This is expensive to taxpayers. Why? Because if the home next door to 
you goes into foreclosure, the value of your home goes down, property 
tax revenues go down, and the local unit of government loses the 
revenue it could receive from those property taxes, for starters.
  If you can't buy and sell a home in your neighborhood, do you know 
what that means to the realtor, to the people who build homes, to those 
who sell carpeting for new homes, right on down the line?
  I will return to the floor next week to talk about this bill. I know 
opponents hate it. I can't persuade some of them no matter what I do, 
no matter what concessions I make. But I will not give up. For 2 years, 
we have been fighting to pass a strong housing bill to turn away this 
tide of foreclosures in Chicago and across America. I hope that on a 
bipartisan basis we can do that starting very soon.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. What is the business pending before the Senate at the 
moment?
  The PRESIDING OFFICER. The nomination of Elena Kagan to be Solicitor 
General.
  Mr. SPECTER. Mr. President, I came at 2 o'clock, when this nomination 
was listed for argument, and another Senator was speaking on another 
subject. We have just heard another Senator speaking on still another 
subject. Only two Senators have spoken so far in favor of the 
nomination. I say to my colleagues on both sides of the aisle, if they 
have anything to say about the nominee, they ought to come to the floor 
and speak.
  The chairman has raised a proposal about voting on the nomination and 
speaking afterward. Part of our deliberative process is to have 
Senators speak with the prospect--maybe unrealistic, maybe foolish--of 
influencing some other votes. We are not going to influence any votes 
if we speak after the vote is taken. But it may be that we are not 
going to have speakers. I urge my colleagues to come to the floor. This 
is Thursday afternoon. In the Senate, that is a code word. It means we 
are about to leave. There are no votes tomorrow, so there will be some 
interest in departure not too long from now. I think we ought to 
conclude at a reasonable time.
  In advance, I had been advised that quite a number of people want to 
speak for quite a long time. We got an allocation of 3 hours for the 
Republican side. That means 6 hours equally divided. Now it appears 
that some who had wanted extensive time will now not be asking for that 
extensive time. We ought to make the determination as soon as we can as 
to who wants to speak and for how long so that we can figure out when 
is a reasonable time to have the vote and conclude the debate so 
Senators may go on their way.
  Turning to the subject matter at hand, the nomination of Dean Elena 
Kagan for Solicitor General of the United States. I begin by noting 
Dean Kagan's excellent academic and professional record. I call her 
Dean Kagan because she has been the dean of the Harvard Law School 
since 2003.
  She has excellent academic credentials: summa cum laude from 
Princeton in 1981, and magna cum laude from the Harvard Law School in 
1986, where she was on the Harvard Law Review. She clerked for Circuit 
Judge Mikva and Supreme Court Justice Marshall and she has had 
government service.
  I ask unanimous consent that her resume be printed in the Record at 
the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. SPECTER. The office of Solicitor General is a very important 
office. That is the person who makes arguments to the Supreme Court of 
the United States on behalf of the United States government. In 
addition to making arguments, the Court frequently asks the Solicitor 
General for the Solicitor General's opinion on whether a writ of 
certiorari should be granted in pending cases. So the Solicitor General 
is sometimes referred to as the 10th Supreme Court Justice--a pretty 
important position.
  I have gone to substantial length, really great length, to find out 
about Dean Kagan's approach to the law and approach to the job of 
Solicitor General and to get some of her ideas on the law because she 
is nominated to a critical public policymaking position. I had the so-
called courtesy visit with her in my office, which was extensive, as 
ranking member on the Judiciary Committee. We had an extensive hearing, 
where I questioned her at some length. Written questions were 
submitted, and she responded. I was not satisfied with the answers that 
were given, and when her name came before the committee for a vote, I 
passed. That means I didn't say yea or nay. I wanted to have her 
nomination reported to the floor so we could proceed, and I wanted an 
opportunity to talk to her further. I did so earlier this month. I then 
wrote her a letter asking more questions and got some more replies. I 
use the word ``replies'' carefully because I didn't get too many 
answers as to where she stood on some critical issues.
  During the course of the hearing, we discussed extensively some of 
her very deeply held positions. The question was raised by me, given 
those positions, would she be able to take a contrary position on some 
statute that she is obligated to uphold in arguments before the Supreme 
Court. She said she would. But the question remains, when you feel so 
strongly--and the record will show what she had to say--whether you can 
really make a forceful argument as an advocate. Theoretically, you can. 
Lawyers are not supposed to necessarily believe in their positions; 
they are supposed to advocate. The clash and clamor of opposing views 
in our adversarial system is supposed to produce truth. Lawyers 
advocate more so than state their own positions. But there is a degree 
of concern when the views are as strongly held as Dean Kagan's have 
been.
  After the long process I have described, I still don't know very much 
about Dean Kagan. It is frequently hard, in our separation of powers, 
for the legislative branch to get much information from the executive 
branch. We look for information, and frequently we are told it is 
executive privilege. We are told it is part of the deliberative process 
or we are simply not told anything, with long delays and no responses.
  The legislative branch has two critical pressure points. One pressure 
point is the appropriations process, to withhold appropriations, which, 
candidly, is not done very often. It is pretty tough to do that. 
Another point is the confirmation process where nominations are 
submitted to us to be confirmed, which the Constitution requires. So 
there the executive branch has no

[[Page 8036]]

choice. They can't talk about executive privilege or deliberative 
process or anything else. But there is a question as to how thorough 
nominees answers to questions should be.
  In discussing what answers we can reasonably expect from Dean Kagan, 
the issue of the questioning of judicial nominees is implicated to the 
extent that the tides have shifted as to how many questions Supreme 
Court nominees are asked. Not too long ago, there weren't even hearings 
for Supreme Court nominees. Then the generalized view was that 
nominations were a question of academic and professional 
qualifications. Then the view was to find out a little bit about the 
philosophy or ideology of a nominee but not to tread close to asking 
how specific cases would be decided. The President is customarily 
afforded great latitude with nominations. Then Senators look for 
qualifications, with the generalized view that they don't want to 
substitute their own philosophy or own approach to the law for the 
discretion of the President. Some Senators do. There is no rule on it. 
We may be in a period of transition where some have said the Senate 
ought to do more by way of utilizing Senators' own philosophical 
positions in evaluating the President's nominees, that we have as much 
standing on that front as the President. That is an open question, but 
I don't propose to suggest the answer to it today or to take a position 
on it. But it bears on how far we can go in asking Dean Kagan 
questions.
  I don't know very much more about her now than I did when we started 
the process. From the many questions that I asked her on cases, I have 
picked out a few to illustrate the problem I am having with figuring 
out where she stands and the problem I am having with her confirmation. 
One case of substance and notoriety is a case involving insurance for 
Holocaust survivors.
  The Southern District of New York Federal court held that plaintiffs' 
monetary claims were preempted by executive policy. The Second Circuit 
wrote to the Secretary of State and asked for the administration's 
position on the adjudication of these suits with respect to U.S. 
foreign policy.
  Dean Kagan was asked the question of what was her view on this case. 
This was a pretty highly publicized case, and it is pretty hard to see 
how an insurance company ought to be preempted or protected by foreign 
policy considerations. Well, Dean Kagan didn't tell us very much in her 
answer. The answer takes up two-thirds of a page, and most of it is 
about the consultative process, which I am, frankly, not much 
interested in. I want to know what she thinks about the policy.
  She said:

       At the end of this process, the decision of the Solicitor 
     General on seeking certiorari is likely to reflect in large 
     measure the views of the State Department as to the magnitude 
     of the foreign policy interests involved.

  It does not say very much. I want to know what foreign policy 
interests she is concerned about.
  Another case involving the terrorist attacks captioned ``In re 
Terrorist Attacks on September 11, 2001'' where people who were 
victimized on that day sought damages from Saudi Arabia, Saudi princes, 
and a banker, who were alleged to have funded Muslim charities that had 
provided material support for al-Qaida. The Southern District of New 
York Federal Court dismissed the plaintiffs' claims on the grounds that 
the defendants were immune from suit. The Second Circuit affirmed, and 
the Supreme Court then asked the Solicitor General's Office for its 
recommendation as to whether to grant the petition for certiorari. 
There, you have the ``tenth'' Supreme Court Justice, the Solicitor 
General, coming into the picture.
  Well, when I questioned Dean Kagan on this case, her response was: 
``I am unfamiliar with this case. . . . A critically important part of 
this process would be to'' work with the clients, the Department of 
State, and the Department of Justice. And the ``inquiry would involve 
exploration of the purposes, scope, and effect of the Foreign Sovereign 
Immunities Act, as well as consideration of the role private suits 
might play in combating terrorism and providing support to its 
victims.''
  Well, we do not know very much about her views from that answer. 
There has been a lot of information in the public domain that Saudi 
charities were involved. Fifteen of the nineteen hijackers were from 
Saudi Arabia. People were murdered. There are claims pending in court. 
The question is whether the Supreme Court is going to take the case. 
Well, I wish to know what the nominee for the position of Solicitor 
General thinks about it.
  I had calls from people in high positions--I do not want to identify 
them--saying: Well, don't ask those kinds of questions. Somebody in the 
executive branch. Well, I am not prepared to relinquish the 
institutional prerogatives of the Senate to ask questions. The 
executive branch nominees want confirmation. Well, Senators want 
information to base their opinions on.
  In the case of Republic of Iraq v. Beaty, the question was whether 
Iraq was amenable to suit under the exception to the foreign sovereign 
immunity clause. American citizens were taken hostage by Saddam Hussein 
in the aftermath of the first gulf war. They got more than $10 million 
in damages. The question, then, is, what would the Solicitor General 
do? The case is now pending before the Supreme Court. Dean Kagan gives 
an elongated answer saying very little, virtually nothing:

       I have no knowledge of the case and cannot make an 
     evaluation of its merits, even if this evaluation were 
     appropriate (which I do not believe it would be) while the 
     case is pending before the Court with a brief from the 
     Solicitor General supporting reversal.

  Well, Dean Kagan has a point as to how much knowledge she has of the 
case. But when she says that an evaluation is not appropriate while a 
brief is pending from the Solicitor General supporting reversal--she is 
not the Solicitor General. She has not submitted the brief. She is not 
a party to the action. She is a nominee. She wants to be confirmed. I 
wish to know how she would weigh this issue.
  Americans taken hostage by Saddam Hussein, and the verdict of $10 
million--why not have a judicial determination in a matter of this 
sort? How much do we defer to foreign governments who have murdered and 
abused and kidnapped American citizens? I think those are fair 
questions.
  I will discuss one more question because I see my colleague Senator 
Sessions is on the floor.
  That is the Kelo case, Kelo v. London, a very famous, widely 
publicized case on eminent domain. Well, does Dean Kagan have the 
record in the case? Has she gone through it line by line? No, that has 
not happened. But the case is pretty well known. It is pretty hard to 
say you do not know much about that. This is what she said in response 
to my question regarding the case:

       I have never written about the Takings Clause; nor have I 
     taught the subject. . . .

  Well, if that is relevant--I do not know if we would confirm very 
many people to the Department of Justice Attorney General position or 
Solicitor General position or to other positions if you had to have 
written about it or if you had to have taught a class on the subject. 
Here again, we know very little as to what she thinks about an issue.
  In essence, it is difficult to cast a negative vote on someone with 
the qualifications and background of Dean Kagan, but we have a major 
problem of institutional standing to find out from a nominee what the 
nominee thinks on important questions.
  The nominee disagrees with what I have said. I have talked to her 
about it. She thinks she can be an advocate for issues even though she 
feels very strongly the other way. She feels she does not have to 
answer questions because it would be inappropriate because the case is 
pending and the Solicitor General has rendered an opinion. Well, I 
disagree with that. I have no illusion the issues I have raised will 
prevail. I think it is pretty plain that Dean Kagan will be confirmed. 
But I do not articulate this as a protest vote or as a protest 
position, but one of institutional prerogatives. We ought to know more 
about these nominees. We ought to take the confirmation process very 
seriously. I believe the scarcity

[[Page 8037]]

and paucity of Senators who have come to the floor to debate this 
nomination does not, candidly, speak too well for this institution. We 
are all waiting to vote to go home. But this is an important position. 
For a Supreme Court Justice nominee, television cameras would be 
present during the hearings, and everybody would be there, and 
everybody would be on camera.
  Well, I think we have to pay a little more attention, and I have gone 
to some length to try to find out more about Dean Kagan. In the absence 
of being able to do so and to have a judgment on her qualifications, I 
am constrained to vote no.
  Before I yield the floor, Mr. President, again, I ask my colleagues 
to come to the floor if they are going to have something to say. I 
would hope we could wind up our activities. We could go until 8 
o'clock. I do not think we ought to do that. My view is, we ought to 
vote no later than 5. But I am not the leader. That is just my view. 
But I do think people ought to come if they want to speak. Or maybe we 
will vote at 5 o'clock, and people can speak afterwards. I do not know 
how it will work out. But I think it would be very healthy if people 
spoke before the vote on the assumption that we have debate to try to 
influence other Senators because we are the world's greatest 
deliberative body, so it says in all the texts.
  I yield the floor.

                               Exhibit 1

                              Elena Kagan


                 solicitor general of the united states

       Birth: 1960; New York, New York.
       Legal Residence: Cambridge, Massachusetts.
       Education: B.A., summa cum laude, Princeton University, 
     1981; Daniel M. Sachs Graduating Fellow, Princeton 
     University; M.Phil., Worchester College, Oxford, 1983; J.D., 
     magna cum laude, Harvard Law School, 1986; Supervising 
     Editor, Harvard Law Review.
       Employment: Judicial Clerk, Judge Abner Mikva, U.S. Court 
     of Appeals for the D.C. Circuit, 1986-1987; Judicial Clerk, 
     Justice Thurgood Marshall, U.S. Supreme Court, 1987-1988; 
     Staff Member, Dukakis for President Campaign, 1988; 
     Associate, Williams & Connolly LLP, 1989-1991; Assistant 
     Professor, University of Chicago Law School, 1991-1994; 
     Tenured Professor, 1995-1997; Special Counsel, Senate 
     Judiciary Committee, 1993 (summer); Associate. Counsel to the 
     President, Executive Office of the President, 1995-1996; 
     Deputy Assistant to the President for Domestic Policy, 1997-
     1999; Visiting Professor, Harvard Law School, 1999-2001; 
     Professor of Law, 2001-Present; Dean, 2003-Present.
       Selected Activities and Honors: Public Member, 
     Administrative Conference of the United States, 1994-1995; 
     Litigation Committee Member, American Association of 
     University Professors, 2002-2003; Recipient, 2003 Annual 
     Scholarship Award of the American Bar Association's Section 
     of Administrative Law and Regulatory Practice, 2003; Board of 
     Trustees, Skadden Fellowship Foundation, 2003-Present; Board 
     of Directors, American Law Deans Association, 2004-Present; 
     Research Advisory Council, Goldman Sachs Global Markets 
     Institute, 2005-2008; Honorary Fellow, Worcester College, 
     Oxford University, 2005-Present; Board of Advisors, National 
     Constitution Center's Peter Jennings Project for Journalists 
     and the Constitution, 2006-Present; Member, New York State 
     Commission on Higher Education, 2007-2008; John R. Kramer 
     Outstanding Law School Dean Award, Equal Justice Works, 2008; 
     Recipient, Arabella Babb Mansfield Award, National 
     Association of Women Lawyers, 2008; Board of Directors, Equal 
     Justice Works, 2008-Present.

  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. KAUFMAN. Mr. President, I begin by thanking the Senator from 
Alabama for his courtesy. I appreciate him allowing me to go before him 
to speak.
  I rise today in support of the nomination of Elena Kagan to be 
Solicitor General of the United States. As we saw from her confirmation 
hearing in the Judiciary Committee more than a month ago, Elena Kagan 
has the piercing intellect, superb judgment, and wealth of experience 
necessary to be an outstanding Solicitor General.
  Dean Kagan's academic credentials could not be any more impressive. 
After graduating summa cum laude and Phi Beta Kappa from Princeton 
University, she attended the Harvard Law School, served as supervising 
editor of the Harvard Law Review, and graduated magna cum laude. After 
law school, she clerked first for Abner Mikva of the District of 
Columbia Circuit, and then Thurgood Marshall on the U.S. Supreme Court.
  That auspicious start to Dean Kagan's legal career was followed by 
private practice at one of America's leading law firms, and then 
service in the Office of the Counsel to the President. She has also 
been a policy adviser to the President, and a legal scholar of the 
first rank at both the University of Chicago and Harvard.
  As others have pointed out, her research and writing in the areas of 
administrative and constitutional law make her a leading expert on many 
of the most important issues that come before the Supreme Court.
  If that level of experience were not enough, she has spent the last 5 
years as the extraordinarily successful dean of the Harvard Law School, 
which by all accounts is not an easy place to govern.
  I note that several of that school's most conservative scholars have 
voiced their support for this nomination. They praise her vision and 
judgment, her incredible work habits, and her extraordinary management 
skills. Just as important, they point to her ability to bridge 
disagreement, by listening to all sides of an argument, engaging 
honestly with everyone concerned, and making decisions openly and with 
good reasons.
  No one disputes that Dean Kagan has served Harvard incredibly well. 
She will do the same for the Office of Solicitor General. Her 
accomplishments as a scholar and teacher are unmatched. Her skill as a 
leader and manager are beyond dispute.
  In fact, she has the support of every single Solicitor General who 
has served since 1985, including all three who worked in the previous 
administration. As they wrote to the Judiciary Committee:

       We are confident that Dean Kagan will bring distinction to 
     the office, continue its highest traditions and be a forceful 
     advocate for the United States before the Supreme Court.

  On a personal note, I want to add that earlier in her career, Dean 
Kagan spent some time working as an adviser to then-Senator Biden. I 
had the good fortune to get to know her in that context. Based on that 
experience, and everything I have seen since, I am absolutely convinced 
not only that she possesses enormous intellect and consummate skill, 
but also that she is a person of the highest character and unquestioned 
integrity.
  In short, this is an outstanding nominee, and an outstanding 
nomination.
  On March 5, after thorough consideration, a bipartisan majority of 
the Judiciary Committee--13 to 3--voted to report Dean Kagan's 
nomination. I urge my colleagues to confirm her without delay, so she 
can begin the critical task of representing the United States in the 
Supreme Court.
  Mr. President, I yield the floor to the Senator from Alabama.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I wish to share my thoughts about the 
nomination of Elena Kagan to be Solicitor General.
  I have strong concerns about her nomination and will not support her 
nomination. I do believe the President, like all Presidents, should be 
entitled to a reasonable degree of deference in selecting executive 
branch nominees. But for some of the reasons I will set out, and one in 
particular, I am not able to support this nomination and will not 
support it.
  I believe her record shows a lack of judgment and experience to serve 
as the Nation's chief legal advocate--a position many have referred to 
as the Supreme Court's ``tenth Justice.'' It is also a position that 
has been called the best lawyer job in the world.
  Well, so far as I can observe, other than time in the White House 
Counsel's Office, Dean Kagan has only practiced law for 2 years in a 
real law firm practicing law. She had very limited experience in the 
things you would look for in a person of this nature.
  But let me discuss one defining moment in her career that I was sort 
of indirectly involved in because of legislation that was percolating 
in the Congress, in the Senate and in the House, and it means a lot to 
me.

[[Page 8038]]

  During her tenure as dean, Ms. Kagan barred the U.S. military from 
coming on the Harvard Law School campus to recruit young law graduates 
to be JAG officers in the U.S. military. That was from November of 2004 
through September of 2005. She barred them from coming and recruiting 
on campus while 150,000 of our finest men and women in this country 
were serving in combat in Iraq and Afghanistan and during a time in 
which 938 troops died in combat, preserving the rights of people like 
law deans, faculty, and students to have all the opinions they want. 
Her decision to bar the military from her campus during a time of armed 
conflict represents exceedingly poor judgment and leadership, 
particularly for someone who wants to lead the Department of Justice, 
the executive branch, and support the military of the United States.
  By refusing to allow military recruiters on the Harvard Law School 
campus, she placed her own opposition to military policies above the 
need of our military men and women to receive good legal advice, even 
from Harvard lawyers. And she did so at a time when the military, 
serving in conflicts in two foreign countries, was facing a host of 
complex legal issues. We are still fighting over them, for that matter. 
Maybe it would have helped if we had some of those graduates 
participating in them.
  I don't believe she ever had a basis to have barred the military from 
her school's campus, and I believe she should have had the judgment to 
realize the signal and the impact that was being sent to our military 
and to the students who want to support and serve in the military. 
Indeed, President Obama should have realized the signal he was sending 
by nominating her to this position.
  Flagg Youngblood wrote an op-ed in the Washington Times on January 30 
and this is what that op-ed stated. I will quote from that article. I 
think it makes a point. This is a military person:

       Since the Solicitor General serves as the advocate for the 
     interests of the American people to the Supreme Court, we're 
     expected to believe Kagan is the best choice? Her nomination 
     smacks of special interest, aimed at protecting the Ivy 
     League's out-of-touch elitism at the expense of students, 
     taxpayers, and our military alike.
       And what about the qualified students who desire to serve 
     our country?

  In the military, he is referring to.

       Second-class, back-of-the-bus treatment, that's what they 
     get, typically having to make time-consuming commutes to 
     other schools and, much worse, the ill-deserved disdain of 
     faculty and peers on their own campuses.
       The military, nobly and selflessly, stands alert at 
     freedom's edge, ready to defend our Nation in times of 
     crisis, and should therefore be honored, and, as most 
     Americans would argue, given preferential treatment, for 
     guarding the liberties that academics such as Kagan profess 
     to protect.
       That's precisely why Congress intervened more than a decade 
     ago, at the behest of a large majority of Americans who 
     recognize and appreciate what our military does, to fulfill 
     the Constitution's call for a common defense among the few, 
     enumerated Federal powers. And, to stop financing those who 
     undermine that fundamental duty. Yet, leftwing views like 
     Kagan's still disparage the sacrifices our military makes and 
     cause real, quantifiable harm to students and to our Nation 
     at taxpayer expense.

  Well, Mr. Youngblood's editorial--he felt deeply about that--
deserves, I think, extra force and credibility because he was affected 
by similar policies when he tried to participate in ROTC while 
attending Yale University during the 1990s. Due to Yale's exclusion of 
the ROTC from campus, Mr. Youngblood was forced to travel because he 
wanted to serve his country, 70 miles to commute to the University of 
Connecticut to attend the military ROTC classes. His ordeal--and many 
like it--led to the passage of the Solomon amendment, which is the 
Federal law that requires colleges to allow military recruiters on 
campus in order to be eligible for Federal funds.
  Well, let me say, that amendment didn't order any university to admit 
anybody or to allow anybody to come on campus; it simply says when you 
get a bunch of money from the Federal Government, you at least need to 
let the military come and recruit students if they would like to join 
the U.S. military and not exclude them.
  So the Solomon amendment is critically important here because it 
shows that Ms. Kagan's decision to block the military from Harvard Law 
School's campus was not just wrong as a matter of public and military 
policy. It was also clearly wrong as a matter of law. While dean at 
Harvard, Ms. Kagan was a vocal critic of the Solomon amendment. She 
called the law immoral. She wrote a series of e-mails to the Harvard 
Law School community complaining about the Solomon amendment and its 
requirement--horrors--that federally funded universities, if they 
continue to get Federal money, ought to allow military recruiters on 
campus or lose the Federal money. She thought that was horrible.
  I should note that Harvard receives hundreds of millions of dollars 
in Federal funding: $473 million in 2003, $511 million in 2004, and 
$517 million in 2005. That is a lot of money. The Federal highway 
budget that goes to the State of Alabama is about $500 million a year. 
Harvard University gets that much. By opposing the Solomon amendment, 
Ms. Kagan wanted Harvard to be able to receive these large amounts of 
taxpayers' dollars without honoring Congress's and President Clinton's 
judgment that military recruiters were eligible to come on campus. 
Under the Solomon amendment, Harvard has always had the option of 
declining Federal funds and relying on its big endowment--$34 billion--
and their tuition to fund the university. Much smaller institutions, 
such as Hillsdale College, have chosen to decline Federal funds to 
carry out their full academic independence. Harvard and Dean Kagan were 
not willing to do so. They wanted both. They wanted money and the right 
to kick out the military.
  I think she showed her legal judgment regarding the Solomon amendment 
in 2005 when she joined in an amicus brief of Harvard Law School 
professors to the U.S. Supreme Court in Rumsfeld v. FAIR, opposing the 
Solomon Amendment's application to Harvard Law School. Unlike the chief 
litigant--the formal appeal group--in the case, which raised a 
straightforward first amendment challenge to the Solomon amendment, the 
brief Ms. Kagan joined with other Harvard Law School professors made a 
novel argument of statutory interpretation that was too clever for the 
Supreme Court.
  Her brief argued that Harvard Law School did not run afoul of the 
letter of the Solomon amendment because Harvard law school did not have 
a policy of expressly barring the military from campus. Harvard, she 
argued, barred recruiters who discriminate from campus. Her brief 
reasoned that the Solomon amendment shouldn't apply where the military 
wasn't singled out, but just ran afoul of a school's nondiscrimination 
policy.
  Ms. Kagan's argument was considered by the U.S. Supreme Court and the 
U.S. Supreme Court upheld the Solomon amendment. In specifically 
addressing Ms. Kagan's amicus brief with the Harvard professors, Chief 
Justice Roberts, writing for the Court, dismissed Ms. Kagan's novel 
statutory interpretation theory using these words:

       That is rather clearly not what Congress had in mind in 
     codifying the DOD policy. We refuse to interpret the Solomon 
     amendment in a way that negates its recent revision, and 
     indeed would render it a largely meaningless exercise.

  It is telling also to note that the brief she signed on to was unable 
to convince a single Justice of the Supreme Court to go along with it--
not even Justice Ruth Bader Ginsberg who was once general counsel to 
the American Civil Liberties Union.
  Let me mention one more thing people have mentioned about the Kagan 
decision to bar the military from recruiting on the Harvard campus. 
Some may have heard that the decision to bar the military was merely 
honoring a ruling of the Third Circuit, which briefly ruled against the 
Solomon amendment on a split decision in Rumsfeld v. FAIR. It is 
critical to note that the Third Circuit's ruling never went into effect 
because the case was appealed to the U.S. Supreme Court and the Third 
Circuit stayed enforcement of its decision. In other words, the Third 
Circuit

[[Page 8039]]

said: Yes, we have rendered it. We understand our opinion is under 
appeal. We are not going to issue a mandate or an injunction that our 
opinion has to be followed. We will allow this case to be decided 
ultimately by the Supreme Court of the United States.
  No injunction was ever entered against enforcement of the Solomon 
amendment. Any decision by any dean to reject the Solomon amendment and 
not enforce it was not required by law. The law stayed in effect. In 
fact, Dean Kagan acknowledged that in an e-mail to the Harvard Law 
School community in 2005. There was a lot of controversy about this at 
Harvard. A lot of people weren't happy about it, you can be sure. She 
admitted in that e-mail that she had barred the military from campus, 
even though no injunction was in place, saying:

       Although the Supreme Court's action meant that no 
     injunction applied against the Department of Defense, I 
     reinstated the application of our anti-discrimination policy 
     to the military . . . ; as a result, the military did not 
     receive assistance during our spring 2005 recruiting season.

  So it is clear that the barring of the military took place while the 
Solomon amendment was, in effect, the law of the land. Her e-mail 
indicates she understood that at the time. As a result, students who 
wanted to consider a military career were not allowed to meet with the 
recruiters on campus. The military was even forced to threaten Harvard 
University's Federal funding in order to get the military readmitted to 
campus as time went on. This was all a big deal. The Congress was 
talking about it. We had debate on it right here on the floor and in 
the Judiciary Committee, of which I am a member.
  I think a nominee to be the Department of Justice's chief advocate 
before the Supreme Court, to hold the greatest lawyer job in the world, 
should have a record of following the law and not flouting it. The 
nominee should, if anything, be a defender of the U.S. military and not 
one who condemns them. Ms. Kagan's personal political views, I think, 
are what led to this criticism of the military, this blocking of the 
military. She opposed a plain congressional act that was put into place 
after we went through years of discussion and pleading with some of 
these universities that were barring the military. They had refused to 
give in, so we passed a law that said, OK, you don't have to admit the 
military, but we don't have to give you money, and we are not giving 
you any if you don't admit them. They didn't like that. So Ms. Kagan's 
refusal of on-campus military recruiters went against a congressional 
act. Her actions were an affront to our men and women then in combat 
and now in combat. The Solicitor General should be a person who is 
anxious and eager and willing to defend these kinds of statutes and to 
defend our military's full freedom and right to be admitted to any 
university, even if some university doesn't agree with the 
constitutional and lawfully established policies of the Department of 
Defense.
  I would also raise another matter, and I think this is important. If 
there was some other significant showing, I think, of competence or 
claim on this position, I would be more willing to consider it. If she 
were among the most proven practitioners of legal skill before Federal 
appellate courts or had great experience in these particular positions, 
maybe I could overcome them. Maybe if she had lots of other cases in 
her career that could show she had shown wisdom in other areas, but 
that is not the case. She has zero appellate experience. Dean Kagan has 
never argued a case before the U.S. Supreme Court, which isn't unusual 
for most American lawyers, but for somebody who wants to be the 
Solicitor General whose job it is to argue before the Supreme Court, it 
is not normal. But for that matter, she has never argued any appellate 
case before any State supreme court.
  In fact, she has never argued a case on appeal before any appellate 
court, whether Federal, State, local, tribal or military. That is a 
real lack of experience. When asked about this lack of experience at 
our hearing, Ms. Kagan tried to compare her record to other nominees 
saying this:

       And I should say, Senator, that I will, by no means, be the 
     first Solicitor General who has not had extensive or, indeed, 
     any Supreme Court argument experience. So I'll just give you 
     a few names:
       Robert Bork, Ken Starr, Charles Fried, Wade McCree. None of 
     those people had appeared before the courts prior to becoming 
     solicitor general.

  Well, Ms. Kagan's record hardly compares to the names she cited in 
her own defense.
  Regarding Charles Fried, Ms. Kagan was wrong in stating that he never 
argued to the Supreme Court. Although Professor Fried did not have much 
in the way of litigation experience before being nominated, he had 
argued to the Supreme Court while serving as Deputy Solicitor General 
in Rex Lee's Solicitor General's Office. Accordingly, Mr. Fried had two 
things Ms. Kagan lacks--Supreme Court experience and experience within 
the Solicitor General's Office.
  Ms. Kagan also compared herself to Ken Starr and Wade McCree, both of 
whom had a wealth of appellate experience that she lacks. Prior to his 
nomination to be Solicitor General, Ken Starr served as a U.S. Court of 
Appeals judge in the District of Columbia--an appellate court--from 
1983 to 1989, a court before which the best lawyers in the country 
appear and argue cases. He had to control and direct their argument, 
and as a result he got to see and have tremendous experience in that 
regard as an appellate judge. Wade McCree had even more experience 
before his nomination. Mr. McCree served as a U.S. Court of Appeals 
judge in the Sixth Circuit, from 1966 to 1977, 11 years.
  Robert Bork also had a strong litigation background before his 
nomination. He was one of the most recognized, accomplished antitrust 
lawyers in private practice in the country.
  We should not forget the critically important role the Solicitor 
General plays in our legal system. As Clinton-era Solicitor General 
Drew Days wrote in the Kentucky Law Journal, ``the Solicitor General 
has the power to decide whether to defend the constitutionality of the 
acts of Congress or even to affirmatively challenge them.'' That is 
quite a power--the power to defend statutes in the Supreme Court, or 
even challenge them in the Supreme Court.
  This is a very critical job within our Government. I think it 
deserves a more experienced lawyer, one with a record that shows more 
balance and good judgment. I think Ms. Kagan's lack of experience is an 
additional reason I am uncomfortable with the nomination. I think 
nominees have to be careful about expressing opinions on matters that 
might come before them in the future. But for a nonjudicial position, 
and concerning issues which were commented on today, Senator Specter 
believes she has been less than forthcoming. Had she been more 
forthcoming, I might have been a little more comfortable with the 
nominee. Her failure to be responsive to many questions, I think, 
causes me further concern.
  To paraphrase a well-known statement of then-Senator Biden--now our 
Vice President--the job of the Solicitor General does not lend itself 
to on-the-job training. One time, Rudy Giuliani was arguing about who 
should be his replacement as U.S. Attorney in Manhattan, and they were 
discussing people with very little experience. He said: I think it 
would be nice if they were able to contribute to the discussion every 
now and then.
  I think it is good to have some experience. So I don't see a sense of 
history here to overcome what I consider to be bad judgment on a very 
important matter. I supported the nomination of Eric Holder. I like him 
and I hope he will be a good Attorney General; I think he will. I 
intend to support most of the other nominees to the Department of 
Justice. I certainly hope to. But I am not able to support Elena 
Kagan's nomination in view of her positions concerning the ability of 
the U.S. military to come on the campus of Harvard and actually recruit 
the young men and women who might wish to join the military. I think 
that was wrong. I also believe she has a very significant lack of 
relevant experience for the position.

[[Page 8040]]

  I yield the floor.
  Mr. INHOFE. I oppose the nomination of Elena Kagan for Solicitor 
General of the United States. I previously spoke against her on the 
floor and talked about the reason I was opposed to her as well as David 
Ogden for his representation of the pornography industry. It is kind of 
hard for me to understand how someone who is the No. 2 position in the 
Justice Department has a history of representing the pornography 
industry. Then, of course, the nominations of Dawn Johnson and Thomas 
Perrelli I am opposed to because of their strong pro-abortion 
positions.
  But as far as Elena Kagan, it is important for those who are going to 
vote in favor of her to know some of the things that have happened in 
her background. Because of its great importance, the office of 
Solicitor General is often referred to as the 10th Supreme Court 
Justice.
  When serving as a dean of Harvard Law School, she demonstrated poor 
judgment on a very important issue to me. Ms. Kagan banned the U.S. 
military from recruiting on campus. She and other law school officials 
sued to overturn the Solomon amendment. The Solomon amendment 
originated in the House. Congressman Jerry Solomon had an amendment 
that said no university could preclude the military from trying to 
recruit on campus. This was a direct violation of the amendment. She 
actually was claiming that the Solomon amendment was immoral. She filed 
an amicus brief with the Supreme Court opposing the amendment. The 
Court unanimously ruled against her position and affirmed that the 
Solomon amendment was constitutional.
  The Department of Justice needs people who adhere to the law and not 
to their ideology. While certainly I oppose many of the positions taken 
by these nominees, I am even more concerned that their records of being 
ideologically driven will weaken the integrity and neutrality of the 
Department of Justice.
  I oppose the nomination of Elena Kagan.
  Mr. HATCH. Mr. President, today I will vote to confirm the nomination 
of Elena Kagan to be the next Solicitor General of the United States. 
Because the Constitution gives the appointment power to the President, 
not to the Senate, I believe the President is owed some deference so 
long as his nominees are qualified. This standard applies particularly 
to his executive branch appointments. I will vote for the nomination 
before us because I believe this standard is satisfied.
  Dean Kagan would not be the first Solicitor General to have come from 
legal academia. Walter Dellinger came to the Clinton administration 
from Duke, Rex Lee served in the Reagan administration after founding 
Brigham Young University School of Law.
  Nor would Dean Kagan be the first Solicitor general to have come to 
the post from Harvard. Archibald Cox came from the Harvard law faculty 
to serve as Solicitor General in the Kennedy administration. Erin 
Griswold became Solicitor General in 1967 after a dozen years as a 
Harvard law professor and another 19 as dean. Charles Fried, who taught 
at Harvard for nearly a quarter century before becoming Solicitor 
General in 1985, went back to teaching and is now a colleague of Dean 
Kagan. I was pleased to see him at her confirmation hearing.
  I would note two other things about Dean Kagan's qualifications. 
First, she has no experience arguing before any court. I have long 
believed that prior judicial experience is not a prerequisite for 
successful judicial service. Justice Felix Frankfurter taught at 
Harvard Law School from 1921 until President Franklin D. Roosevelt 
appointed him to the Supreme Court in 1939. During that time, by the 
way, he turned down the opportunity to become Solicitor General. But 
Justice Frankfurter famously wrote in 1957 that the correlation between 
prior judicial experience and fitness for the Supreme Court is, as he 
put it, ``precisely zero.''
  But courtroom argument, especially appellate advocacy, is a more 
specific skill that is related more directly to the Solicitor General's 
job. As such, Dean Kagan's complete lack of such experience is more 
significant. Which leads me to the second point that, despite her lack 
of courtroom experience, every living former Solicitor General has 
endorsed her nomination. They know better than anyone what it takes to 
succeed in the post and believe she has what it takes.
  Speaking of endorsements, Dean Kagan is also supported by a number of 
lawyers and former government officials who are well known in 
conservative legal circles. These include Peter Keisler, who served as 
Assistant Attorney General and Acting Attorney General under President 
George W. Bush; Miguel Estrada, prominent Supreme Court practitioner 
and a former nominee to the U.S. Court of Appeals; Jack Goldsmith, who 
headed the Justice Department's Office of Legal Counsel under the 
previous President; and Paul Cappuccio, who served in the Justice 
Department during the first Bush administration and is now general 
counsel at TimeWarner.
  A few other issues have given me pause during the confirmation 
process. When Dean Kagan served as a law clerk for Justice Thurgood 
Marshall, she wrote a memo in a case challenging the constitutionality 
of the Adolescent Family Life Act. That statute provided funds for 
demonstration projects aimed at reducing teen pregnancy. Dean Kagan 
objected to including religious groups in such projects, insisting that 
``[i]t would be difficult for any religious organization to participate 
in such projects without injecting some kind of religious teaching.'' 
She actually argued for excluding all religious organizations from 
programs or projects that are, in her view, ``so close to the central 
concerns of religion.'' This is a narrow-minded, I think even ignorant, 
view of religious groups and her recommendation of discrimination 
against them comes close, it seems to me, to raising a different kind 
of constitutional problem. Thankfully, the Supreme Court did not follow 
her suggestion and instead upheld the statute. When asked about it at 
her hearing in February, Dean Kagan said that, looking back, she now 
considers that to be, as she put it, ``the dumbest thing I ever 
heard.'' With all due respect, I agree.
  Dean Kagan took a very strong, very public stand against the so-
called Solomon Amendment, which withholds federal funds from schools 
that deny access to military recruiters. Harvard denied such access in 
protest of the military's exclusion of openly gay servicemembers. Dena 
Kagan chose to allow access only under the threat of the entire 
university losing federal money. But she condemned in the exclusion 
policy in the strongest terms, calling it repugnant and ``a profound 
wrong--a moral injustice of the first order.'' In her personal 
capacity, she joined other law professors on a friend of the court 
brief in the lawsuit challenging the policy. In 2006, the Supreme Court 
upheld the Solomon Amendment, specifically rejecting the position Dean 
Kagan had taken, saying: ``We refuse to interpret the Solomon Amendment 
in a way that . . . would render it a largely meaningless exercise.'' 
Dean Kagan is entitled to take that or any other position on that or 
any other issue she chooses. But it raises the question whether she 
would be able, as the Solicitor General must, to put aside even such 
strongly held personal views and vigorously defend only the legal 
interests of the United States. She assured the Judiciary Committee 
that she could do that, even saying that she would have defended this 
very statute, the Solomon amendment, in the way that Solicitor General 
Paul Clement did. I note that Paul Clement is one of the former 
Solicitors General endorsing Dean Kagan's nomination.
  When Dean Kagan's nomination came up for a vote in the Judiciary 
Committee, I joined the ranking member, Senator Specter, in passing 
because of concerns that she had been insufficiently forthcoming in 
answering questions during her hearing and written questions afterward. 
I applaud Senator Specter for pursuing this, for meeting with Dean 
Kagan again, and for pushing her for more information and more thorough 
answers. She has provided some additional insight into her views, 
though I respect the fact that her additional effort will not satisfy 
everyone.

[[Page 8041]]

  All in all, I have concluded that I can support Dean Kagan's 
nomination. She is qualified to serve as Solicitor General and I have 
not seen enough to overcome the basic deference that I believe I must 
give the President. As such, I will vote to confirm her.
  Mr. KYL. The nomination of Elena Kagan to be Solicitor General of the 
United States is not without controversy. She has a stellar academic 
record which has been discussed. Following law school, Ms. Kagan served 
as a judicial clerk for Judge Abner Mikva on the U.S. Court of Appeals 
and for Supreme Court Justice Thurgood Marshall. After her clerkships, 
Ms. Kagan joined the DC law firm Williams and Connolly.
  Ms. Kagan left private practice to join the faculty of the University 
of Chicago Law School. In 1995, Ms. Kagan began her service in the 
Clinton administration as associate counsel to the President and later 
as deputy assistant to the President for Domestic Policy. In 1999, she 
left the White House and returned to legal academia, joining the 
faculty at Harvard Law School. In 2003, Ms. Kagan was named Dean of 
Harvard Law School, a role in which she was charged with overseeing 
every aspect of the institution, academic and non-academic alike.
  She is well regarded by those who have followed her career.
  I am particularly troubled, however, by two matters. First, Dean 
Kagan's nomination has rightfully received criticism because of her 
stance on the Solomon amendment. Dean Kagan joined two briefs 
concerning the legality of the Solomon amendment, one on an amicus 
brief to the Third Circuit in support of the appellants, FAIR, in the 
case FAIR v. Rumsfeld, and the other an amicus brief in support of FAIR 
when the case reached the Supreme Court. By a vote of 9 to 0, the 
Supreme Court upheld the Solomon Amendment and rejected the argument 
presented in the brief that Dean Kagan signed. See Rumsfeld v. FAIR, 
547 U.S. 47, 55-57, 2006. Also, I would like to make one comment about 
Dean Kagan's actions as dean in this case. As Senator Sessions pointed 
out earlier today, because the case was appealed to the Supreme Court, 
the Third Circuit stayed enforcement of its decision. Therefore, the 
Solomon amendment stayed in effect. Dean Kagan acknowledged this in a 
September 20, 2005, email to the Harvard Law School community, where 
she admitted that she had barred the military from campus even though 
no injunction was in place: ``Although the Supreme Court's action 
[granting review] meant that no injunction applied against the 
Department of Defense, I reinstated the application of our anti-
discrimination policy to the military . . . . as a result, the military 
did not receive [Office of Career Services] assistance during our 
spring 2005 recruiting season.'' Thus, Ms. Kagan barred the military 
from recruiting on campus even though the Solomon amendment remained 
the law of the land.
  Second, I am troubled by Dean Kagan's lack of appellate experience. 
She has not argued even a single case before the Supreme Court or 
before any federal or state appellate court. I am quite concerned about 
her complete lack of appellate advocacy. I am, nevertheless, willing to 
give her the benefit of the doubt, primarily because of the views of 
seasoned advocates who know her well and who know the Court well.
  All three Solicitors General appointed by President Bush--Ted Olson, 
Paul Clement, and Greg Garre--signed a letter, January 27, 2009, 
stating that they ``are confident that Dean Kagan will bring 
distinction to the office, continue its highest traditions and be a 
forceful advocate for the United States before the Supreme Court.'' 
They added, ``[h]er brilliant intellect will be respected by the 
Justices, and her directness, candor and frank analysis will make her 
an especially effective advocate.''
  Additionally, among her other supporters are two highly respected 
conservative lawyers who have known Dean Kagan since the beginning of 
her legal career. The first is Peter Keisler, who served as Acting 
Attorney General under President Bush and held a number of other top 
positions in the Bush Justice Department. He clerked on the U.S. 
Supreme Court with Elena Kagan, and wrote the following in support of 
her nomination, January 30, 2009: ``[her] combination of strong 
intellectual capabilities, thoughtful judgment, and her way of dealing 
respectfully with everybody . . . are . . . among the many reasons she 
will be a superb Solicitor General, and will represent the government 
so well before the Court.''
  Second, Miguel Estrada has known Elena Kagan since law school. He 
wrote in support of her nomination, January 23, 2009: ``Having worked 
as an attorney in the Solicitor General's Office under Solicitors 
General of both parties, I am also confident that Elena possesses every 
talent needed to equal the very best among her predecessors.''
  I expect a Solicitor General nominated by a President of a different 
political party to hold views that diverge from my own; but I also 
expect that nominee to be qualified for the position, able to 
faithfully execute the responsibilities of the office, and be 
forthright and honest with members of Congress. She has assured us that 
her ideology will not interfere with her decisions as Solicitor 
General. I will closely follow Dean Kagan's tenure as Solicitor 
General. I will hold her to her commitments.
  I would like to make clear that my vote for Dean Kagan is only for 
the position of Solicitor General, and my vote does not indicate how I 
would vote for her if she were nominated for any other position, 
especially a position that is a lifetime appointment. Specifically, 
according to numerous news accounts, Dean Kagan is expected to be 
considered for nomination to the Supreme Court if an opening were to 
occur during the Obama administration. If she were nominated, her 
performance as Solicitor General would be critical in my evaluation of 
her suitability for the Supreme Court. My decision whether to support 
or oppose her would be strongly influenced by the decisions made by her 
as Solicitor General, such as the cases for which she does and does not 
seek review, the positions she argues, and the bases for her arguments. 
If she approaches her job as Solicitor General ideologically or argues 
inappropriate positions, I will not hesitate to oppose her nomination.
  Mr. WHITEHOUSE. Mr. President, I wish to urge my colleagues to 
support the nomination of Elena Kagan to be the Solicitor General. In 
doing so, I will make four brief points.
  First, Dean Kagan is extraordinarily qualified as a lawyer with a 
profound understanding of the issues that dominate the Supreme Court's 
docket. She has received enormous praise for her leadership of Harvard 
Law School as dean, in which position she reinvigorated one of the 
premier legal institutions in our country. And of course Dean Kagan is 
a scholar of the highest order on questions of administrative and 
constitutional law. She clearly has the intellectual background and 
sharp intelligence necessary to represent the interests of the United 
States with the utmost skill and clarity. She testified in her hearing 
and in numerous followup questions that she will put the interests of 
the United States ahead of any of her own beliefs and defend 
congressional statutes with the vigor and force we expect of the 
office. She has worked in private practice, as a clerk to the Supreme 
Court, and as a counsel in the White House. I applaud her willingness 
to return to Government service. Now, some critics have pointed out 
that she has not argued before the Supreme Court before. As an attorney 
who has argued before that Court, I can attest that appearing before 
the Court indeed is a daunting experience. But Solicitors General Ken 
Starr, Charles Fried, Robert Bork, and Wade McCree similarly had not 
argued before the Court. This fact leaves me with no doubt that Dean 
Kagan will meet the highest expectations of her and that she will excel 
as Solicitor General.
  Second, I would point out that a very large number of leading lawyers 
have joined me in concluding that Dean Kagan will be an excellent 
Solicitor General. Dean Kagan's nomination to be Solicitor General has 
been endorsed by every Solicitor General who served from 1985 to 2009--
Charles Fried, Ken

[[Page 8042]]

Starr, Drew Days, Walter Dellinger, Seth Waxman, Ted Olson, Paul 
Clement, and Greg Garre. That is not the Solicitors General from every 
Democratic administration--that is every Solicitor General over the 
last 24 years, including conservatives Ted Olson and Ken Starr. Surely 
their expert opinions should provide a strong indication that Dean 
Kagan will be an excellent Solicitor General.
  Third, it is worth noting the historic nature of this nomination. If 
confirmed, Dean Kagan would become the first woman confirmed by the 
Senate to hold the Office of Solicitor General of the United States. 
Dean Kagan has spent her lifetime breaking glass ceilings, and she is 
poised to break another for the benefit of generations of women to 
come.
  Finally, I would like to commend Chairman Leahy for his continuing 
determination to confirm as many Department of Justice nominees as 
quickly as possible. The United States deserves the best advocate 
possible before the Supreme Court. We should confirm Dean Kagan and let 
her get to work. And we should swiftly confirm the remaining nominees 
to the Department of Justice. I look forward to continuing to work with 
Chairman Leahy in that effort.
  Mr. BUNNING. Mr. President, I rise today to speak on the nomination 
of Dean Elena Kagan of the Harvard School of Law to be Solicitor 
General of the United States. It is with regret that I announce that I 
will not be able to support this nomination.
  My first reason is that it appears that Dean Kagan's nomination 
process is not yet complete. My colleague, the ranking member of the 
Senate Judiciary Committee Senator Arlen Specter, has already spoken on 
this at some length, but I agree with his thoughts. He asked Dean 
Kagan, in writing, to expand upon responses she supplied to the 
Judiciary Committee. In the estimation of several committee members and 
others, such as myself, she did not provide an adequate response to 
these requests. I find that it is not possible for me to vote to 
advance the nomination of someone who has not yet completed the 
nomination process.
  However, we do know some things about Dean Kagan's beliefs. For one 
thing, she has shown a disdain for the policy contained in the Solomon 
amendment. The Solomon amendment bars federal aid to universities that 
prevent military recruitment on campus. This is a good policy and 
fairly supports our military and the men and women that are a part of 
it. Dean Kagan defends her position by saying that she opposes the 
recruiters because of the ``Don't Ask, Don't Tell'' policy. Whatever 
her concerns with that policy, it does not seem wise or fair to shut 
out our nation's military recruiters. By denying recruiters access to 
America's colleges and universities, our military is weakened. This is 
the kind of wrongheaded approach that I thought had died out years ago. 
Unfortunately, it is still alive in the person of the President's 
nominee to head one of the top positions in the Department of Justice.
  Dean Kagan has also expressed an unsettling attitude towards religion 
and religious organizations. In a memo as a law clerk on the subject of 
which organizations should receive funding to counsel teenagers on 
pregnancy, she wrote ``It would be difficult for any religious 
organization to participate in such projects without injecting some 
kind of religious teaching.'' She added ``When government funding is to 
be used for projects so close to the central concerns of religion, all 
religious organizations should be off limits.'' This seems like an 
incredibly insensitive, insulting, and impractical view to hold. Does 
Dean Kagan feel that only atheists are fit to handle government funds? 
Would she support some sort of a ``religious commitment'' litmus test? 
This seems like an attitude that would be unfit for a high ranking 
member of our government.
  It is for these reasons that I cannot support this nomination. I urge 
my colleagues to join me in opposition.
  Mr. CORNYN. Mr. President, I rise to share my views on the nomination 
of Elena Kagan, who has been nominated by President Obama to serve as 
Solicitor General of the United States.
  As my colleagues know, I have supported several of President Obama's 
executive nominees and opposed a few others. I believe that it is my 
constitutional duty to carefully review the record and qualifications 
of each nominee, while giving an appropriate amount of deference to the 
President when a nominee is objectively qualified for the position to 
which they are nominated, regardless of political orientation.
  For example, I voted to confirm Secretary of State Hillary Clinton. I 
likewise voted to confirm Ambassador Ron Kirk to be U.S. Trade 
Representative.
  Unfortunately, I could not reach the same conclusion with Attorney 
General Eric Holder regarding his fitness to serve as the Nation's top 
law enforcement official.
  And, for the reasons outlined below, I cannot support Elena Kagan's 
nomination to be Solicitor General. My primary concern with Ms. Kagan's 
nomination is her continued failure to respond to legitimate and 
relevant questions posed by me and others.
  As I explained when the Judiciary Committee approved Ms. Kagan's 
nomination on March 5:

       Ms. Kagan notes how much she respects the Senate and its 
     institutional role in the nominations process. Regrettably, 
     her refusal to answer legitimate and relevant questions posed 
     by me and others belies this claimed respect. For this 
     reason, I will be voting `no' this morning and do not believe 
     that her nomination should be advanced. I hope that Ms. Kagan 
     reconsiders her position because I believe that she is 
     otherwise qualified to serve as Solicitor General.

  In response to Senator Specter's subsequent request to supplement her 
answers in writing, Ms. Kagan returned a 22-page letter purporting to 
do just that. But I concur with Senator Specter, the ranking member on 
the Judiciary Committee, who has determined that too many of Ms. 
Kagan's answers to relevant and legitimate questions remain incomplete 
and unresponsive. As Senator Specter correctly notes, this is about the 
Senate's institutional prerogatives.
  In sum, I do not believe that Ms. Kagan has provided the basic level 
of responsiveness that the Senate's constitutional advice and consent 
function demands. And for that reason I am forced to vote against her.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, I don't know if there are other Members are 
coming. While the Senator from Alabama is on the floor, let me note 
that I heard there may be one or two more Members coming over. I hope 
they will come soon. I am going to be here, as I have a series of 
meetings until well after 6, but I know a number on both sides have 
flights to catch.
  Once everybody has spoken, I will suggest that we yield back all time 
and have a vote. I know the Senator from Alabama had specific time set 
aside and didn't use all of it. I hope he might join me in calling for 
other Senators who wish to speak to come over. If they are to speak, it 
would be better to do it sooner rather than later. It would be a great 
help to a number of Senators on both sides of the aisle.
  Mr. SESSIONS. If the Senator will yield, the chairman of the 
Judiciary Committee has set up ample time for this to be discussed 
today. I thank him for that. Senator Specter, a little while ago, 
indicated that he thought the time should be yielded back and we could 
vote as early as 5. He hoped that would be acceptable, and he urged 
people to come down if they have comments. I will join him and you in 
urging people to come down if they have remarks to make. It would be 
more convenient, I think, for people to have an early vote.
  Mr. LEAHY. Mr. President, I thank my friend from Alabama. I urge 
Members--if there are others--not to wait until 5. And I ask those on 
the other side of the aisle, if you wish to speak, please do so as soon 
as possible, because at some point--and we will do this only with 
notice to the Republican side--I am going to ask unanimous consent to 
yield back all time and go to a vote.

[[Page 8043]]

  In the meantime, I suggest the absence of a quorum and ask that the 
time be equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. REED. 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. REED. Mr. President, it is a distinct honor for me to rise in 
support of Dean Elena Kagan and her nomination to be Solicitor General 
of the United States. As most of my colleagues are aware, she has had 
an illustrious legal career that includes clerking for Judge Abner 
Mikva on the U.S. Court of Appeals for the District of Columbia and 
also Justice Thurgood Marshall on the U.S. Supreme Court. She has 
obtained tenure in two of the most distinguished law schools in the 
country: the University of Chicago and Harvard Law School. She served 
as Special Counsel in the Clinton administration, and now she is dean 
of the Harvard Law School.
  I had the privilege of getting to know Dean Kagan through alumni 
activities at Harvard Law School. She is much younger than I, obviously 
much smarter than I, but we still are alumni of the same law school. 
She is extraordinarily qualified to be the Solicitor General based on 
her intellectual gifts but also in terms of her temperament, her 
professionalism, her experience, and her innate sense of fairness and 
decency. She will represent the United States well, not only with her 
legal analysis but with her commitment to the principles that sustain 
this country based on the Constitution of the United States. There are 
many qualities that make her ideally suited for this job--her 
temperament, her maturity, her judgment, her success in leading one of 
the most complicated faculties in the country.
  Most lawyers have opinions, so when you put 100 or so of them 
together, you have a lot of different viewpoints. She has led Harvard 
Law School with great skill and with great success. I think it will be 
an indication of her ability to lead the Solicitor General's office and 
to harmonize in principle, reaching substantive agreements, the 
critical issues that are debated within the this important office and 
going forward.
  In the 5 years she has been dean of the law school, she also received 
great acclaim for bridging the differences in approaches and viewpoints 
at the school, with hiring new faculty members with diverse viewpoints, 
different from hers, recognizing that the heart and soul of an academic 
institution is debate, vigorous debate, not orthodoxy but vigorous 
debate, and she has done that.
  She has been very attentive to the needs of the students there. I was 
particularly impressed when I visited the law school and had a chance 
to meet some veterans of the U.S. military who had served in Iraq and 
Afghanistan and who were then current law students at Harvard. Their 
praise for the dean, both her personal qualities and her leadership 
qualities, was unstinted. They saw her as someone who deeply 
appreciated their sacrifice as soldiers, marines, sailors, and airmen 
in the service of this Nation. They understood this not just from what 
she said, but from her attitude, her deep and profound respect for 
their service. I thought that was a particularly telling point, 
commending her to me in a very real and very immediate sense.
  What is also particularly striking about Dean Kagan is that her 
entire life's work as a legal scholar shows a deep and profound 
commitment to the Constitution of the United States which governs us 
all. She has committed herself to giving it meaning, to making it a 
force to advance the ideals of this country. She brings not only great 
respect for the Constitution, great knowledge of the Constitution, but 
also the understanding that this is a document that unites us--our 
aspirations, our ideals, our hopes, our wishes for the future--it links 
us to the past and it unites us to go forward into the future.
  She was asked by officials at my other alma mater, West Point, in 
October 2007 to speak to the cadets because they recognize that this is 
a woman of rare talent as a lawyer and rare judgment, someone who 
understands that we live in a government of laws, not of men and women. 
That is a fundamental lesson that must be imparted to those who take an 
oath to protect with their lives the Constitution of the United States, 
to recognize that we are a nation of laws, and soldiers, more than 
anyone else, have to recognize that because it is their lives that give 
us the opportunity to live under this Constitution of laws.
  She used as a touchstone for this speech a place on campus at West 
Point called Constitution Corner. It was the gift of the West Point 
class of 1943. It was to recognize that, in fact, soldiers in this 
great country are servants to the Constitution.
  One of the five plaques at this site is entitled ``Loyalty to the 
Constitution,'' which basically states what all of us who have been in 
the military are keenly aware, that the United States broke with an 
ancient tradition. Instead of swearing loyalty to a military leader, 
American soldiers swear their loyalty to the Constitution of the United 
States. I had that rare privilege on July 3, 1967, when I took the oath 
as a cadet at West Point.
  The rest of her speech explored the fundamental rule of law, giving 
purpose and context to what these young men and women, soldiers in our 
Nation, will do when they lead other soldiers to defend--not territory, 
not business enterprises, but the foundation of our country--the 
Constitution of the United States.
  She mentioned examples of people who have put the Constitution before 
their own personal comfort and privilege--President Nixon's Attorney 
General Archibald Cox, who refused to go along with summary firings in 
the wake of the Watergate scandal, and President George W. Bush's 
Attorney General John Ashcroft, our former colleague, both of whom did 
their best to uphold the rule of law in very trying circumstances. 
These are examples that I think resonated very well with the cadets.
  I believe the dean is someone who has not just the skill, not just 
the mind, but the heart to serve with distinction as Solicitor General 
of the United States. She will be a forceful and powerful advocate, not 
for the administration, not for any small, narrow cause, but for the 
Constitution of the United States. I believe that is the fundamental 
role of the Solicitor General, one she will perform admirably.
  I recommend without reservation Dean Kagan to this body. I hope we 
all rise to support her. If confirmed as the first female Solicitor 
General of the United States, we will be extremely fortunate to have 
her representing the people of the United States before the Supreme 
Court of the United States.
  Mr. President, I yield the floor. I suggest the absence of a quorum 
and ask that the time be equally divided between both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. BURRIS. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Tester). Without objection, it is so 
ordered.


                              Gun Violence

  Mr. BURRIS. Mr. President, I stand today to discuss a matter of great 
importance and great sadness to every community across this country. 
From our biggest cities to our smallest towns, gun violence is stealing 
the lives of innocent victims. It is tearing apart families, 
communities, and our own sense of security. Gun violence in our 
communities must end, and it must end now.
  In just the last 2 weeks we have had too many grim reminders of what 
can happen when there are too many weapons on the street. From Chicago 
and Maryville, IL, to Samson, AL, we have seen gun violence mix with 
devastating results.
  Friday was a tragic day in Chicago. Last Friday night, 14-year-old 
Gregory Robinson was gunned down in a car

[[Page 8044]]

while driving with his family through Chicago's far south side. This 
young man's funeral is today. Instead of reaching his dream to become a 
basketball star at Simeon Career Academy in Chicago, this high school 
freshman became the 28th Chicago public school student to be killed 
just this year. Twenty-eight students, Mr. President. I repeat, 28 
young lives are now snuffed out.
  Last Tuesday was an equally tragic day in the city. On Tuesday, young 
Franco Avilla, a tenth grader at Roosevelt High School on Chicago's 
west side, was shot to death. Instead of being the exception, shooting 
deaths of our school children have now become the rule. Last school 
year, 26 Chicago public school students were shot during the full 9-
month school year. Well, this year, Chicago public schools have already 
surpassed this sad milestone, and it is only March.
  When Franco left his house last Tuesday afternoon, his last words to 
his father were: ``Dad, I'll be back.'' He never came home. Gun 
violence took his life.
  We must take action now to get these weapons off our streets and end 
the senseless slaughter of our young people.
  Guns played an equally devastating role in the life of Juan Pitts. 
Mr. Pitts' son, Kendrick, was a 17-year-old student at Bowen High 
School when he was shot down last month alongside two other Chicago 
public school students--15-year-old Raheem Washington and 13-year-old 
Johnny Edwards.
  The deaths of these young men are atrocious. Yet the pain and tragedy 
of the Pitts family has only doubled since then. Two weeks ago, 
Kendrick's brother, Carnell, who graduated from Bowen High School last 
year, was shot to death at a gathering on Chicago's south side.
  Gangs and gun violence go hand-in-hand. Our youth should be carrying 
school books instead of firearms. Yet in so many instances, our failure 
to invest in the education of our youth on the front end is at the root 
of the violence and imprisonment, as a result, on the back end. Our 
failure to enact serious, sensible gun control measures make it much 
more likely these tragedies are going to occur again and again.
  We tend to think of gun violence as a problem of large urban areas--a 
symptom of America's big cities. Well, the truth is, no community is 
immune to such senseless behavior. I am from a small town. I was born 
and raised in Centralia, IL, which is about 100 miles south of our 
State capital of Springfield. I know how close-knit these small-town 
families and small towns are. I know how safe these towns seem to be.
  Sadly, two recent events proved otherwise.
  A recent shooting in Maryville, IL, which is about an hour-and-a-half 
drive from my hometown of Centralia, reminds us that the dangers 
associated with guns affect us all, no matter where we live, work, pray 
or go to school.
  Two weeks ago, on a quiet Sunday morning, a 27-year-old gunman walked 
straight down the aisle of Maryville's First Baptist Church and shot 
and killed Pastor Winters during the normal weekly service. Just days 
later, in Samson, AL, we saw the all-too-familiar word flash across our 
TV screens again--``massacre.'' A 28-year-old gunman killed a total of 
10 individuals and injured many more before he finally took his own 
life during an hour-long rampage.
  The 10 individuals who died, whose lives ended on that tragic Tuesday 
afternoon, were going about their daily routine without the slightest 
thought that their lives would end that very day. The many more who 
were wounded by those gunshots surely never thought they, too, would be 
victims--survivors, nonetheless--of gun violence.
  The stark truth is, everybody is a victim of gun violence. Every 
Senator in this body has constituents who have been touched by this 
issue, and it is our responsibility as lawmakers and leaders of this 
great Nation to ensure assault and semiautomatic weapons do not take 
the lives of so many innocent victims. We must take action to stop the 
senseless killing on our Nation's streets, in our communities, at our 
schools, and in our places of worship. We must take action to increase 
our gun control measures and decrease our gun violence. Ultimately, by 
doing so, we will be taking action to ensure our children, our 
families, and our communities live in a safer place in America.
  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. BURRIS. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BURRIS. I ask unanimous consent the time of the quorum call be 
equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BURRIS. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BENNETT. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BENNETT. Mr. President, I ask unanimous consent that I be allowed 
to speak up to 10 minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                               The Budget

  Mr. BENNETT. Mr. President, President Obama's budget is sending mixed 
messages to the American people. I know he faces a very difficult time, 
as do we all. I know he is trying to get the best counsel he can, and I 
applaud him for that. I do not have a degree in macroeconomics and I 
know some of the finest macroeconomists in the country are on President 
Obama's team. I do not know anybody, however, on President Obama's team 
who has ever run a small business. So, if I may be so presumptuous, I 
would like to share some of the realities of running a small business 
with the President's team and see if we can't understand why many of 
the things that are in the President's budget, in fact, will have 
directly the opposite effect than he wants.
  It is the goal of the administration to increase job creation and 
spur economic growth. That is a legitimate goal. However, we must 
understand this about how you increase job creation: You must be sure 
small businesses are properly taken care of because small businesses 
provide more than half the jobs Americans hold and small businesses 
create the new jobs. When large businesses start downsizing, buying 
people out and laying people off, where do they go? In many instances, 
those who do not go on unemployment end up in small businesses.
  If I may offer my own credentials, I have run businesses that were as 
small as two people--myself and my secretary. I was recruited to be the 
CEO--a very high-powered title--of a business that had only four 
employees. I made number five. We grew that business to the point that 
there were thousands of employees and the business was ultimately 
listed on the New York Stock Exchange. So I offer that to the 
macroeconomists on President Obama's team, to say that if you want to 
increase jobs and if you want to increase economic growth and thereby 
increase tax revenue to the Federal Government, you should pay 
attention to small business.
  One of the worst things that can happen to you when you are trying to 
grow a small business is to make money. That sounds counterintuitive, 
but it is true. Why? Because you need that money to finance your 
growth, but the Government shows up and says we want ours in taxes. So 
you want the tax rate to be as low as possible. The business that I 
described, that went from four employees to the New York Stock 
Exchange, was built during what the New York Times and other critics 
called the decade of greed because the top tax rate was 28 percent, and 
they thought that was terrible. It was only

[[Page 8045]]

28 percent, the top marginal tax rate? That is awful. That only goes 
for the greedy Americans.
  That meant that for every dollar we earned in that business, we got 
to keep 72 cents of it, which we could use to finance the growth of the 
business. That business was grown with internally generated funds. Yes, 
we had a bank line and yes we drew on the bank line, but it was the 
internally generated funds that made it possible for us to create those 
thousands of jobs.
  Because there were a small number of us in that business, we took the 
business income onto our personal tax returns. That is allowed under 
the Tax Code, under what is known as Chapter S, under the Tax Code. We 
were an S corporation. So while my tax return showed the amount I was 
paid while I was the CEO of that company, it also showed my share of 
the profits of the company. None of that came to me. All of that was 
reinvested in the company. But for tax purposes, it showed up on my tax 
return. So I, very quickly, for tax purposes, was an American earning 
more than $250,000 a year. I was not, but my tax returns showed that I 
was.
  Now, the top tax rate was 28 percent. This was while Ronald Reagan 
was President. If we were to start that business today and the 
President's budget were to pass and the President's Tax Code were to be 
enforced, we would now be paying not 28 percent but 42 percent because 
you would go to 39.5 percent and then you would have the other add-ons 
connected with Medicare and the other things that have been changed. I 
do not believe the business would have survived. I think that tax 
burden would have been so heavy that we would not be able to make it.
  Let me give you the numbers from my own State, to show how important 
this is. In the State of Utah, we have 68,758 small businesses that 
employ less than 500 people; we have 65,693 small businesses that 
employ less than 50 people, and we have 61,057 small businesses that 
employ less than 20 people.
  So the number of people employed by small businesses in Utah--this 
rules out the farmers, this is not agriculture--is 760,096 in 
businesses with less than 500 people each. That is 61 percent of Utah's 
entire employment population.
  Now, if you increase the taxes on all of those people on the 
assumption that they are rich, you increase the taxes on every one of 
those businesses because they are rich. Look, the owners of the 
businesses are filing tax returns to show over $250,000 so they must 
all be Wall Street brokers and traders. Right.
  Now, they are people who are struggling to make the business grow, 
struggling to provide the jobs. Make no mistake, the tax increases 
proposed by President Obama's budget will hurt Utah's small businesses, 
hundreds of thousands of our employees, our State's economy, and that 
means, at large, our national economy. So it is a mixed message. The 
goal is job creation, but the budget will hurt the greatest engine of 
job creation which is small businesses.
  Second, the administration's goal is to increase service in America 
and invest in the nonprofit sector. That sounds wonderful. Then they 
turn around and say: If you invest in the nonprofit sector, you, 
American citizens, we are going to take away a portion of your tax 
deduction for the gift you give to charity. This is a double hit.
  If I am running my small business I have just described, the tax man 
shows up and gives me less than I can give to charity, and then if I do 
give some to charity, the tax man shows up and takes more of that away 
from me by eliminating part of my tax deduction for charity. That is a 
mixed message. We want you to do this, but we are creating an economic 
incentive that makes it difficult for you and will penalize you.
  Now, finally, the administration has the goal to protect the majority 
of Americans from tax increases. The President has said over and over 
that he will not increase taxes for 95 percent of Americans. That 
sounds wonderful until you turn around and recognize that he is 
proposing a new energy tax at the gas pump and on your utility bill 
that will hit 100 percent of Americans.
  So on one side: Well, we are not going to hit you on the income tax 
side. But we are going to take it away from you on the gas pump and 
utility side. This is because he wants to create a cap-and-trade 
program. Other countries have cap-and-trade programs. I was in the 
United Kingdom. I talked to the people about theirs. As they were 
outlining how it works, I said to them: Do your ratepayers understand 
they are paying this? This is not money that is created in Heaven.
  The answer I got was: Well, they are beginning to. We all saw the 
reaction of Americans when gas was $4 a gallon at the pump, and we all 
felt the heat as our constituents came us to and said: You have got to 
do something about this; this is far too much for us to pay for 
gasoline.
  Then when the prices came down, that political outrage began to 
disappear. However, if you do cap and trade in the way the President 
wants, those prices will start to creep up again. It will be at the gas 
pump, it will be at the utility. So it is another mixed message.
  We have three mixed messages. We want to create jobs, but we are 
going to tax the greatest engine of creating jobs. We want people to 
get involved in national service, but we are going to tax them and 
penalize them if they do. We want Americans, ordinary Americans, to go 
without tax increases, but we are going to increase their taxes on 
energy and hit them with a fund that will amount to approximately $650 
billion, by virtue of the carbon tax that will come through the cap-
and-trade program.
  What is the consequence of all of this? My colleagues have talked 
about the fact that the record spending is going to double the national 
debt in 5 years, triple it in 10 years. How is the administration going 
to pay for that? In the ways I have described. They are going to do it 
through increased taxes.
  There is one last thought I want to leave everyone. We can determine 
here in the Congress how much we spend. We cannot determine here in the 
Congress how much we take in. We can pass a tax law that will project a 
certain amount that will come in, but that projection will not come to 
pass if the economy is not strong. Money does not come from the budget. 
Money comes from the economy. If the economy is weakened, if the 
generations of economic growth are weakened in the ways I have 
described, we will not have the money with which to pay the debt.
  So we come back to that which the distinguished Republican leader has 
said at the beginning of this debate: If you take the President's 
budget all in all, it spends too much, it taxes too much. And when the 
taxes do not cover what is being spent, it borrows too much.
  I may not be a macroeconomist, but I have a long history of running a 
business and knowing how devastating the tax man's arrival can be to 
that business. I have a history of creating jobs, jobs that pay taxes 
as the employees are compensated. I know this aspect of our economy is 
one that the Obama administration would be well advised to pay 
attention to.
  I yield the floor.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Mr. President, I ask unanimous consent that at 5 p.m. 
today, the Senate proceed to vote on confirmation of the nomination of 
Elena Kagan, and that all debate time on the nomination be yielded 
back, except that the chairman and ranking member or their designees 
have 2 minutes each immediately prior to the vote; further, that all 
provisions of the previous order governing the nomination continue to 
be effective.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

[[Page 8046]]


  Mr. LEAHY. Mr. President, I have heard a lot of debate here today. I 
remind Senators of one thing: The Kagan nomination is not 
controversial. Every Solicitor General who served from 1985 has 
endorsed her nomination. That is every Democratic one, every Republican 
one, across the political spectrum.
  Let me read some of the names who have endorsed this woman Charles 
Fried, Ken Starr, Drew Days, Walter Dellinger, Seth Waxman, Ted Olson, 
Paul Clement, Greg Garre. Here is what they wrote in their letter of 
support:

       We who have had the honor of serving as Solicitor General 
     over the past quarter century in the administrations of 
     Presidents Ronald Reagan, George H.W. Bush, William Clinton 
     and George W. Bush, write to endorse the nomination of Dean 
     Elena Kagan to be the next Solicitor General of the United 
     States. We are confident that Dean Kagan will bring 
     distinction to the office, continue its highest traditions, 
     and be a forceful advocate for the United States before the 
     Supreme Court.

  One of the conservative professors whom Dean Kagan helped bring to 
Harvard Law School was Professor Jack Goldsmith. You may remember, he 
took charge of the Office of Legal Counsel after the disastrous tenures 
of Jay Bybee and John Yoo.
  Professor Goldsmith, a conservative, praised Dean Kagan as someone 
who takes to the Solicitor General's Office a better understanding of 
the Congress and the executive branch that she will represent before 
the Court than perhaps any prior Solicitor General.
  I ask unanimous consent that a list of these and the dozens of other 
supporters be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 Letters of Support for the Nomination of Elena Kagan To Be Solicitor 
                      General of the United States


                  Current and Former Public Officials

       David A. Strauss; Gerald Ratner Distinguished Service 
     Professor of Law, The University of Chicago; former Attorney-
     Adviser in the Office of Legal Counsel of the U.S. Department 
     of Justice and former Assistant to the Solicitor General of 
     the United States.
       Charles Fried; Beneficial Professor of Law, Harvard Law 
     School; former Solicitor General.
       Clifford M. Sloan; Skadden, Arps, Slate, Meagher & Flom, 
     LLP; former Assistant to the Solicitor General of the United 
     States.
       Jack Goldsmith; Professor, Harvard Law School; former 
     Assistant Attorney General, Office of Legal Counsel.
       Joint Letter from Former Department of Justice Officials; 
     Janet Reno, former Attorney General;
       Jamie S. Gorelick, former Deputy Attorney General; Patricia 
     Wald, former Assistant Attorney General for Legislative 
     Affairs; Eleanor D. Acheson, former Assistant Attorney 
     General for the Office of Policy Development; Loretta C. 
     Argrett, former Assistant Attorney General for the Tax 
     Division; Jo Ann Harris, former Assistant Attorney General 
     for the Criminal Division; Lois Schiffer, former Assistant 
     Attorney General for the Environment and Natural Resources 
     Division.
       Joint Letter from Former Solicitors General; Walter 
     Dellinger, Theodore B. Olson, on behalf of: Charles Fried, 
     Kenneth W. Starr, Drew S. Days III, Seth P. Waxman, Paul 
     Clement, Gregory G. Garre.
       Judith A. Miller; former General Counsel, Department of 
     Defense.
       Miguel A. Estrada; Gibson, Dunn & Crutcher, LLP; former 
     Assistant to the Solicitor General.
       Paul T. Cappuccio; Executive Vice President and General 
     Counsel of Time Warner; former Associate Deputy Attorney 
     General.
       Peter Kiesler; former Assistant Attorney General for the 
     Civil Division.
       Roberta Cooper Ramo; former President, American Bar 
     Association.


          Law Enforcement and Criminal Justice Organizations.

       Women in Federal Law Enforcement.


                       Civil Rights Organizations

       John Payton; President and Director-Counsel, NAACP Legal 
     Defense Fund, Inc.
       National Association of Women Lawyers.
       National Women's Law Center.


                            Other Supporters

       Brackett B. Denniston, III; Senior Vice President and 
     General Counsel, General Electric.
       Bradford A. Berenson; Sidley Austin, LLP.
       Jeffrey B. Kindler; Chairman of the Board, Chief Executive 
     Officer, Pfizer, Inc.
       John F. Manning; Bruce Bromley Professor of Law, Harvard 
     Law School.
       Joint Letter from former Harvard Law Students; Katie Biber 
     Chen, Class of 2004; Anjan Choudhury, Class of 2004; Justin 
     Driver, Class of 2004; Isaac J. Lidsky, Class of 2004; 
     Meaghan McLaine, Class of 2004; Carrie A. Jablonski, Class of 
     2004; Jeffrey A. Pojanowski, Class of 2004; Beth A. Williams, 
     Class of 2004; John S. Williams, Class of 2004; David W. 
     Foster, Class of 2005; Courtney Gregoire, Class of 2005; 
     Rebecca Ingber, Class of 2005; Lauren Sudeall Lucas, Class of 
     2005; Kathryn Grzenczyk Mantoan, Class of 2005; Anton 
     Metlitsky, Class of 2005; Chris Murray, Class of 2005; 
     Rebecca L. O'Brien, Class of 2005; Beth A. Stewart, Class of 
     2005; Ryan L. VanGrack, Class of 2005; David S. Burd, Class 
     of 2006; Eun Young Choi, Class of 2006; Matt Cooper, Class of 
     2006; Brian Fletcher, Class of 2006; David S. Flugman, Class 
     of 2006; Adam D. Harber, Class of 2006; Jeffrey E. Jamison, 
     Class of 2006; Nathan P. Kitchens, Class of 2006; Tracy Dodds 
     Larson, Class of 2006; Benjamin S. Litman, Class of 2006; 
     Dana Mulhauser, Class of 2006; Meredith Osborn, Class of 
     2006; Matthew Price, Class of 2006; John M. Rappaport, Class 
     of 2006; Kimberly J. Ravener, Class of 2006; Rachel Rebouche, 
     Class of 2006; Zoe Segal-Reichlin, Class of 2006; Jeremiah L. 
     Williams, Class of 2006; Tally Zingher, Class of 2006; L. 
     Ashley Aull, Class of 2007; Daniel F. Benavides, Class of 
     2007; Robert P. Boxie, III, Class of 2007; Damaris M. Diaz, 
     Class of 2007; Gabriel Kuris, Class of 2007; Adam R. Lawton, 
     Class of 2007; John A. Mathews II, Class of 2007; Michele A. 
     Murphy, Class of 2007; Michael A. Negron, Class of 2007; 
     Alexi Nunn, Class of 2007; Josh Paul Riley, Class of 2007; 
     Jasmin Sethi, Class of 2007; Jane Shvets, Class of 2007; 
     Jason M. Spitalnick, Class of 2007; James Weingarten, Class 
     of 2007; Amy C. Barker, Class of 2008; Kathryn Baugher, Class 
     of 2008; Margaux Hall, Class of 2008; Rochelle Lee, Class of 
     2008; Daniel P. Pierce, Class of 2008; Elizabeth Russo, Class 
     of 2008; Megan Ryan, Class of 2008; Andrew M. Woods, Class of 
     2008.
       Joint Letter from Former Lawyers in the Solicitor General's 
     Office; Andrew L. Frey, Assistant to the Solicitor General, 
     Deputy Solicitor General; Kenneth S. Geller, Assistant to the 
     Solicitor General, Deputy Solicitor General; Philip Allen 
     Lacovara, Assistant to the Solicitor General, Deputy 
     Solicitor General; Andrew J. Pincus, Assistant to the 
     Solicitor General; Charles A. Rothfeld, Assistant to the 
     Solicitor General; Stephen M. Shapiro, Assistant to the 
     Solicitor General, Deputy Solicitor General.
       Joint Letter from Iraq War Veterans and Harvard Law 
     Students; Geoff Orazem, Hagan Scotten, and Erik Swabb.
       Joint Letter from Law School Deans; Larry D. Kramer, Dean 
     and Richard E. Lang Professor of Law, Stanford Law School; T. 
     Alexander Aleinikoff, Dean, Georgetown University Law Center; 
     Evan H. Caminker, Dean, The University of Michigan Law 
     School; Michael A. Fitts, Dean, University of Pennsylvania 
     Law School; Harold H. Koh, Dean and Gerard C. and Bernice 
     Latrobe Smith Professor of International Law, Yale Law 
     School; David F. Levi, Dean, Duke University School of Law; 
     Saul Levmore, Dean and William B. Graham Professor of Law, 
     The University of Chicago Law School; Paul G. Mahoney, Dean, 
     University of Virginia School of Law; Richard L. Revesz, Dean 
     and Lawrence King Professor of Law, New York University 
     School of Law; David M. Schizer, Dean, Columbia University 
     School of Law; David van Zandt, Dean, Northwestern University 
     School of Law.
       Joseph H. Flom; Skadden, Arps, Slate, Meagher & Flom, LLP.
       Judith Lichtman; Senior Advisor, National Partnership for 
     Women & Families.
       Laurence H. Tribe; Carl M. Loeb University Professor, 
     Harvard University.
       Martin Lipton; Wachtell, Lipton, Rosen & Katz.
       Robert D. Joffe; Cravath, Swaine & Moore, LLP.
       Robert Katz; The Goldman Sachs Group, Inc.
       William F. Lee; Co-Managing Partner, Wilmer-Hale; former 
     Member, Board of Overseers of Harvard College and the 
     Visiting Committee to Harvard Law School.

  Mr. LEAHY. It is time for our daughters and granddaughters to see a 
woman serving as the chief legal advocate on behalf of the United 
States. I urge all Senators, just as the Republican and Democratic 
former Solicitors have supported her, to support President Obama's 
nomination.
  Vote to confirm Elena Kagan to be Solicitor General of the United 
States.
  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. LEAHY. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER (Mr. Whitehouse). Without objection, it is so 
ordered.
  Under the previous order, there will now be 4 minutes of debate, 
equally divided, prior to a vote on the Kagan nomination.
  Mr. LEAHY. Parliamentary inquiry: I thought the vote was going to be 
at 5 o'clock.
  The PRESIDING OFFICER. After the 4 minutes of debate.

[[Page 8047]]


  Mr. LEAHY. Mr. President, I ask unanimous consent that all time for 
both sides be yielded back.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Elena Kagan, of Massachusetts, to be Solicitor General of the United 
States?
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from California (Mrs. Boxer), 
the Senator from Massachusetts (Mr. Kennedy), the Senator from 
Minnesota (Ms. Klobuchar), and the Senator from Washington (Mrs. 
Murray) are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Nevada (Mr. Ensign), the Senator from South Carolina (Mr. Graham), 
and the Senator from Mississippi (Mr. Cochran).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 61, nays 31, as follows:

                      [Rollcall Vote No. 107 Ex.]

                                YEAS--61

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

                                NAYS--31

     Alexander
     Barrasso
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Corker
     Cornyn
     Crapo
     DeMint
     Enzi
     Grassley
     Hutchison
     Inhofe
     Isakson
     Johanns
     Martinez
     McCain
     McConnell
     Murkowski
     Risch
     Roberts
     Sessions
     Shelby
     Specter
     Thune
     Vitter
     Voinovich
     Wicker

                             NOT VOTING--7

     Boxer
     Cochran
     Ensign
     Graham
     Kennedy
     Klobuchar
     Murray
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is considered made and laid upon the table.
  The President will be immediately notified of the Senate's action.
  Mr. McCAIN. The President nominated Elena Kagan, currently dean of 
Harvard Law School, for Solicitor-General of the United States. While I 
do not share many of Dean Kagan's views, I especially disagree with 
Dean Kagan on the constitutionality of the Solomon amendment.
  In 2005, Dean Kagan and 53 other law school faculty members filed an 
amicus brief to declare the Solomon amendment unconstitutional. The 
Solomon amendment, named for former Congressman Jerry Solomon, alloys 
military recruiters to meet with students on college campuses and 
allows the Reserve Officers' Training Corps, ROTC, to train on college 
campuses. The Supreme Court found Dean Kagan's arguments to be 
unpersuasive and declared the Solomon Amendment to be constitutional. I 
believe the Supreme Court was absolutely correct in its decision.
  It is my hope that as Solicitor General, Dean Kagan will not allow 
her personal viewpoint on this important issue to prohibit the 
implementation of the Solomon amendment and that our military 
recruiters continue to recruit the best and brightest at our Nation's 
colleges to serve in our military.

                          ____________________