[Congressional Record (Bound Edition), Volume 156 (2010), Part 10]
[House]
[Pages 13981-13982]
[From the U.S. Government Publishing Office, www.gpo.gov]




                              {time}  1930
                   SUPREME COURT NOMINEE ELENA KAGAN

  The SPEAKER pro tempore (Ms. Woolsey). Under a previous order of the 
House, the gentleman from Tennessee (Mr. Duncan) is recognized for 5 
minutes.
  Mr. DUNCAN. Madam Speaker, I spent 7\1/2\ years, before coming to 
Congress, as a criminal court judge in Tennessee trying felony criminal 
cases. I

[[Page 13982]]

tried the attempted murder of James Earl Ray and many other high-
profile cases, thus I have a great interest in our legal system, our 
courts, and especially appointments to the U.S. Supreme Court.
  I realize that Elena Kagan will be confirmed very soon as our next 
Supreme Court justice, but I am very disappointed by her nomination. I 
certainly have nothing against her personally, but the Supreme Court is 
our highest appellate court. Courts of appeal basically second-guess 
trials. I wish our President and all future Presidents would appoint 
people who have actually tried cases. We should try to nominate 
justices who have had experience both as trial lawyers and as trial 
judges, people who understand the heat of the battle, the give and 
take, the decisions that have to be made on the spur of the moment both 
by lawyers and judges. Ms. Kagan may be a brilliant woman, but she has 
none of this experience.
  I want to read a portion of an article in the June 28 issue of Human 
Events by a man who spent over 20 years as a judge before coming to 
Congress, our colleague, the gentleman from Texas (Mr. Poe). 
Congressman Poe wrote, ``Supreme Court nominee Elena Kagan has never 
been a judge. She's never seen a courtroom from the bench. She's never 
had a judge's responsibilities.
  ``Elena Kagan has never instructed a jury or ruled on a point of 
law--any point of law. She's never tried a criminal case or even a 
traffic case. She has not decided even one constitutional issue. We 
don't know whether she believes the Constitution is the foundation of 
American law or whether she thinks, like many, that the Constitution 
constantly changes based on personal opinions of Supreme Court 
justices. But either way, Elena Kagan has never had to make a 
constitutional call in a court of law in the heat of a trial. She has 
never admitted evidence or ruled out evidence or ruled on the chain of 
custody regarding evidence. She has never made even one decision 
regarding any rule of evidence. She has never ruled on the exclusionary 
rule, the Miranda doctrine, an unlawful search and seizure allegation, 
a due process claim, an equal protection violation, or any other 
constitutional issue.
  ``She has never impaneled a jury. She has never instructed on 
reasonable doubt or sentenced a person to the penitentiary. She has 
never had to decide whether a witness was telling the truth or not. As 
a judge, she has never heard a plaintiff, a defendant, a victim, or a 
child testify as a witness. She has never made that all-important 
decision of deciding whether or not a person is guilty or not guilty of 
a crime. She has never ruled on a life or death issue.
  ``Elena Kagan has never made a judgment call from the bench, not a 
single one. Yet, as a Supreme Court justice she would be second-
guessing trial judges and trial lawyers who have been through the mud, 
blood, and tears of actual trials and actual courts of law. How can she 
possibly be qualified to fill the post of a Supreme Court justice?''
  Mr. Poe continued, ``Kagan is an elitist academic who has spent most 
of her time out of touch with the real world and with the way things 
really are. Being a judge would be an exercise to the new Supreme Court 
nominee. She has read about being a judge in books, I suppose. She 
might even have played pretend in her college classroom, but she has 
never held a gavel in a courtroom. Her first time to render judgment 
should not be as a member of the United States Supreme Court.
  ``Aside from being a judge, she has never even been a trial lawyer. 
She has never questioned a witness, argued a case to a jury, or tried 
any case to any jury anywhere in the United States. Real world 
experience makes a difference.'' This was written by our colleague, Mr. 
Poe. And I agree with everything he wrote.
  Finally, I want to commend a Member from the other body, the 
gentleman from Tennessee, Senator Alexander, my own Senator, for his 
decision to vote against the nomination of Mrs. Kagan. It is a very 
poor nomination.

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