[Congressional Record (Bound Edition), Volume 156 (2010), Part 11]
[Senate]
[Pages 15001-15020]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF ELENA KAGAN TO BE ASSOCIATE JUSTICE OF THE SUPREME COURT

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will proceed to executive session to consider the following 
nomination, which the clerk will report.
  The assistant legislative clerk read the nomination of Elena Kagan, 
of Massachusetts, to be Associate Justice of the Supreme Court.


                   Recognition of the Majority Leader

  The ACTING PRESIDENT pro tempore. The majority leader is recognized.
  Mr. REID. Mr. President, while we continue working this week to 
create jobs and finish the unfinished business of this work period, we 
will also turn to the nomination of Supreme Court nominee Elena Kagan.
  Giving the President the Senate's advice and consent, as prescribed 
by the Constitution for a lifetime appointment to the highest Court in 
the country, is one of this body's most solemn obligations.
  Chairman Leahy and Ranking Member Sessions oversaw, through the 
lengthy process, very thorough and respectful confirmation hearings. 
All of them were fair and I think were probative. I thank them both for 
their leadership.
  Several Senators have already made known how they will vote on Ms. 
Kagan's nomination. Those Senators and many others will come to the 
floor in the next few days to explain their positions. I will be one of 
them speaking in support of this exceptional nominee. I will certainly 
give her my vote.
  As the debate moves to the Senate floor and as we move toward a final 
vote, I look forward to a continuation of the passionate but civil 
discussion we have seen in the committee thus far. In this respect, 
perhaps we can draw inspiration from Ms. Kagan herself. In her 
confirmation hearing last year for the position she currently holds--as 
our Nation's Solicitor General, that is our Government's lawyer in 
cases that come before the U.S. Supreme Court--Ms. Kagan testified that 
one of the attributes she would bring to the job was an ``understanding 
of how to separate the truly important from spurious.''
  In the final days of this process, I suggest we keep those words in 
mind. I hope my fellow Senators will bring to this debate the same 
appreciation for what is critical to the Court and to our country, that 
will keep it separate from what is not.
  The ACTING PRESIDENT pro tempore. The Senator from Vermont is 
recognized.


                 Measure Placed on Calendar--H.r. 5901

  Mr. LEAHY. Mr. President, I understand that H.R. 5901 is at the desk 
and due for a second reading.
  The ACTING PRESIDENT pro tempore. Without objection, the clerk will 
read the title of the bill for the second time.
  The assistant legislative clerk read as follows:

       A bill (H.R. 5901) to amend the Internal Revenue Code of 
     1986 to exempt certain stock of real estate investment trusts 
     from the tax on foreign investment in United States real 
     property interests, and for other purposes.

  Mr. LEAHY. I object to any further proceedings on this measure at 
this time.
  The ACTING PRESIDENT pro tempore. Objection is heard. The bill will 
be placed on the calendar.
  Mr. LEAHY. Mr. President, what is the order?
  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senator from Vermont, Senator Leahy, will control the first 30 minutes, 
and the Senator from Alabama, Senator Sessions, will control the second 
30 minutes.
  The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, more than 12 weeks ago, President Obama 
nominated Elena Kagan to succeed Justice John Paul Stevens as an 
Associate Justice of the Supreme Court of the United States. When the 
President announced his choice on May 10, he talked about her legal 
mind, her intellect, her record of achievement, her temperament and her 
fair-mindedness.
  Having heard from Solicitor General Kagan at her confirmation hearing 
5 weeks ago, I believe the American people have a sense of her 
impressive knowledge of the law, her good humor, and her judicial 
philosophy. In her testimony, she made clear that she will base her 
approach to deciding cases on the law and the Constitution, not on 
politics, not on an ideological agenda. She indicated that she will not 
be the kind of Justice who will substitute her personal preferences, 
and overrule the efforts of Congress to protect hardworking Americans 
pursuant to our constitutional role. Solicitor General Kagan made one 
pledge to those of us who were at that hearing: that she will do her 
``best to consider every case impartially, modestly, with commitment to 
principle, and in accordance with law.''

[[Page 15002]]

  Incidentally, I might say, at the outset, I compliment Republicans 
and Democrats alike for the amount of time Senators spent at the 
hearing. I certainly compliment the ranking member, Senator Sessions. 
We may have disagreed on the outcome and on the vote, but I think 
Senators worked very hard to get questions asked, to make sure that the 
American people knew who Elena Kagan was. I note that Senator Sessions 
and I set the times for witnesses and all. We were constrained somewhat 
by the distinguished Presiding Officer's predecessor, who died that 
week, and we were trying to arrange time for many of us to go to the 
funeral. I wanted to publicly thank Senator Sessions for his help in 
working out that schedule.
  No one can question the intelligence or achievements of this woman. 
No one should question her character either. Elena Kagan was the first 
woman to be the Dean of the prestigious Harvard Law School and the 
first woman in our Nation's history to serve as Solicitor General, a 
position often referred to as the ``Tenth Justice.'' As a student, she 
excelled at Princeton, Oxford and Harvard Law School. She worked in 
private practice and briefly for then-Senator Joe Biden on the 
Judiciary Committee. She taught law at two of the Nation's most 
respected law schools, and counseled President Clinton on a wide 
variety of issues. She clerked for two leading judicial figures, Judge 
Abner Mikva on the Court of Appeals for the District of Columbia 
Circuit, and then for Supreme Court Justice Thurgood Marshall, on one 
of the most extraordinary lawyers in American history.
  I have been here since the time of President Gerald Ford, and I have 
long urged Presidents from both political parties to look outside what 
they call the ``judicial monastery,'' and not feel restricted to 
considering only Federal appellate judges to fill vacancies on the 
Supreme Court. This, of course, is what Presidents used to do. With his 
second nomination to the Court, President Obama has done just this; he 
has gone outside the judicial monastery. When confirmed, Elena Kagan 
will be the first non-sitting judge to be confirmed to the Supreme 
Court in almost 40 years, since the appointments of Lewis Powell and 
William Rehnquist.
  I know there was criticism by some Republicans that this nominee 
lacks judicial experience. Of course, that ignores one key fact. 
President Clinton nominated her to the DC Circuit Court in 1999. The 
Senate was controlled by Republicans at the time and it was Senate 
Republicans who refused to consider her nomination. She was pocket 
filibustered. Had the Republicans not done so, Elena Kagan would have 
been confirmed and would have had more than 10 years judicial 
experience. To give you some idea of her abilities, instead, when she 
was not allowed to have a vote for the DC Circuit Court, she went on to 
become an outstanding law professor, the first woman Dean of Harvard 
Law School--one of the most prestigious law schools in the country, 
actually the world--and the first woman to serve as the Solicitor 
General of the United States. Her nomination to the Supreme Court 
received the highest possible rating from the American Bar 
Association's Standing Committee on the Federal Judiciary. Her 
credentials and legal abilities have been extolled by many across the 
political spectrum. Two of these individuals were Justice Sandra Day 
O'Connor and Justice Antonin Scalia. In addition, Michael McConnell, 
Kenneth Starr and Miguel Estrada have given praise to this nomination. 
Like Justices Hugo Black, Robert Jackson, Earl Warren, William 
Rehnquist and so many others, Solicitor General Kagan's experience 
outside the judicial monastery will be valuable to her when she is 
confirmed. No one can question the intelligence or achievements of this 
woman. I hope nobody would question her character either.
  From the moment her nomination was announced, Solicitor General Kagan 
has spoken about the importance of upholding the rule of law and 
enabling all Americans to have a fair hearing. She said that ``law 
matters; because it keeps us safe, because it protects our most 
fundamental . . . freedoms; and because it is the foundation of our 
democracy.'' Like her, I believe the law does matter in people's lives. 
That is why I went to law school. That is why I practiced law and then 
became a prosecutor. That is why I ran for the Senate. I believe that 
the law matters in people's lives, because the Constitution is this 
amazing fabric of our Nation; it is our protection. She understands 
this, as did her mentor, Justice Thurgood Marshall.
  In her contribution to the 1993 tribute to Justice Marshall by the 
Texas Law Review, Elena Kagan recalled how Justice Marshall's law 
clerks had tried to get him to rely on general notions of fairness, 
rather than a strict reading of the law, so they could allow an appeal 
to proceed on a discrimination claim. She wrote that the then 80-year-
old Justice referred to his years trying civil rights cases and said: 
All you could hope for was that a court would not rule against you for 
illegitimate reasons. You could not expect that a court would bend the 
rules in your favor. That is the rule of law. Just as Sir Thomas More 
reminded his son-in-law in that famous passage from ``A Man for All 
Seasons,'' that the law is our protection, Justice Marshal reminded his 
law clerks that the existence of rules and the rule of law is the best 
protection for all, including the least powerful. Elena Kagan 
concluded, as I do, that Justice Marshall ``believed devoutly . . . in 
the rule of law.'' He was a man of the law in the highest sense. He 
understood the Constitution's promise of equality.
  I was disappointed to see the manner in which his legacy was treated 
by some during the recent confirmation hearing, and to read that there 
are Republican Senators, currently serving, who recently said they 
would vote against Thurgood Marshall's confirmation to the Supreme 
Court if he were up now. He was a giant, and I would hope that if he 
were here again, those Senators would reconsider whether they would 
vote for him.
  With this nomination, Elena Kagan follows in the footsteps of Justice 
Marshall, who was also nominated to the Supreme Court from the position 
of Solicitor General. She broke a glass ceiling when she was appointed 
as the first woman to serve as Solicitor General of the United States 
and when she served as the first woman dean of the Harvard Law School. 
When the Supreme Court next convenes, for the first time in our 
history, I predict there will be three women serving together among the 
nine Justices.
  The stakes at the Nation's highest court could not be higher. One 
need look no further than the Lilly Ledbetter case to understand the 
impact that each Supreme Court appointment has on the lives and 
freedoms of countless Americans. In the Ledbetter case, five Justices 
of the Supreme Court struck a severe blow to the rights of working 
families across our country. Congress acted to protect women and others 
against discrimination in the workplace more than 40 years ago, but we 
still struggle to ensure that all Americans--women and men--receive 
equal pay for equal work. It took a new Congress, joined by our new 
President, to reverse the activist conservative majority in the Supreme 
Court by passing the Lilly Ledbetter Act, striking down the immunity 
the Supreme Court had given to employers who discriminate against their 
employees and successfully hid their wrongdoing. The Ledbetter case 
said, in a decision I still find shocking, that they could pay men a 
higher rate than women for the same work. As long as they kept it 
hidden, it was OK.
  Recently in the Citizens United case, just one vote on the Supreme 
Court determined that corporate money can drown out the voice of 
Americans in elections that decide the direction of our democracy. They 
said that if British Petroleum wanted to spend hundreds of millions of 
dollars to defeat people who want to tighten the controls on our 
offshore drilling, or want to tighten the kind of inspections required 
for offshore drilling, British Petroleum, according to the Supreme 
Court, could spend hundreds of millions of dollars to defeat these 
people.
  I had hoped that Senate Republicans would join our effort to respond 
to the

[[Page 15003]]

conservative activist majority of the Supreme Court, who wrongly 
decided to override its own precedent and 100 years of legal 
development in Citizens United. Unfortunately, last week they 
filibustered the DISCLOSE Act and gave their endorsement to unfettered 
corporate influence in American elections.
  For all the talk about ``judicial modesty'' and ``judicial 
restraint,'' from the nominees of a Republican President at their 
confirmation hearings, we have seen a Supreme Court in the last 5 years 
that has been anything but modest and restrained. What we have seen all 
too often in these last years is the activist conservative members of 
the Supreme Court substituting their own judgment for that of the 
American people's elected representatives.
  I have always championed judicial independence. I think it is 
important that judicial nominees understand that, as judges, they are 
not members of an administration--any administration, Democratic or 
Republican, but they are judicial officers. They should not be 
political partisans, but judges who uphold the Constitution and the 
rule of law for all Americans. That is what Justice Stevens did in 
Hamdan, which held the Bush administration's military tribunals 
unconstitutional, and what he tried to do in Citizens United. That is 
why intervention by an activist conservative majority in the 2000 
Presidential election in Bush v. Gore was so jarring and wrong. Mr. 
Gore had gotten the majority of votes throughout the country, but there 
was just one vote on the Supreme Court that he didn't get--the one vote 
that decided the election. That one vote was given to President Bush.
  During her confirmation hearings, Solicitor General Kagan reflected 
an understanding of the judicial role and the traditional view of 
deference to Congress and judicial precedent. This is the mainstream 
view and one once embraced by conservatives. She indicated she would 
not be the kind of Justice who would substitute her personal 
preferences and overrule congressional efforts designed to protect 
hard-working Americans pursuant to our constitutional role. In fact, it 
is precisely because of Solicitor General Kagan's independence that 
many Republicans have announced their opposition to her nomination. 
They oppose her not because she would be a judicial activist as they 
claim, but rather because she would not overrule Congress as much as 
they would like. They seem not to like the fact that she is genuinely 
committed to judicial restraint rather than furthering a conservative 
ideological agenda.
  Some who oppose this nomination do so because they seek to make this 
nomination a continuation of the fight over health care. They seek to 
transform this policy dispute they lost in Congress into a 
constitutional one that goes against 100 years of law and Supreme Court 
precedents. They would turn back the clock by resurrecting long-
discredited legal doctrines wisely rejected nearly a century ago. They 
oppose Solicitor General Kagan because she will not commit to a narrow 
and outmoded legal view that would undermine the constitutionality of 
health insurance reform.
  Congress has enacted and the President has signed into law the 
landmark Patient Protection and Affordable Care Act. I believe Congress 
was right to do so in order to address our health care crisis and 
ensure that Americans who work hard their entire lives are not robbed 
of their family's security because health care is too expensive. We 
were right to make sure that hard-working Americans do not risk 
bankruptcy with every illness. Many Republican Senators disagreed, as 
is their right, and voted against the law. But many of those who 
opposed this law now seek to do in the courts what they could not do by 
obstruction in Congress. They are so adamant in seeking this result, 
that they would turn back the clock by resurrecting long-discredited 
legal doctrines wisely rejected a nearly a century ago.
  In framing their opposition to health insurance reform as a 
constitutional attack, these critics would also undermine the 
constitutional basis of laws against child labor and those setting a 
minimum wage or the Social Security Act, Medicare, the Clean Water Act, 
the Clean Air Act, and the landmark Civil Rights Acts. All are 
constitutional because of Congress's authority to legislate pursuant to 
the core powers vested in Congress by article I, section 8 of the 
Constitution, including the general welfare clause, the commerce 
clause, and the necessary and proper clause. The radical consequences 
of a narrow-minded agenda would be to erode the Supreme Court's time-
honored interpretation of these enumerated powers that give Congress 
the ability to promote the general welfare of the American people.
  These critics wish to return to the conservative judicial activism of 
the early 1900s, a period known by reference to one of its most 
notorious cases, the 1905 Lochner decision in which the Supreme Court 
struck down a New York State law protecting the health of bakers by 
regulating the number of hours they could work.
  During this period of unbridled conservative judicial activism, the 
Supreme Court substituted their own views of property for those of the 
elected branches in order to strike down nearly 200 laws, including 
laws outlawing child labor--something we take for granted today--and 
laws protecting Americans from sick chickens--something that created a 
huge health hazard. They envisioned their principal role as the 
defender of business's profits--profits they made with child labor--and 
the protector of unrestrained ability to perform contracts, however 
onerous or one-sided. The American people suffered. Their rights went 
unprotected. Congress was unable to provide assistance. That is not a 
time anyone should want to return to because it was based on artificial 
legal restraints that shackled the people's elected representatives in 
Congress.
  Millions of Americans rely on Social Security, Medicare, unemployment 
benefits, minimum wage laws, and other programs to protect Americans in 
tough economic times. This radical conservative agenda is a threat to 
Federal disaster relief and environmental regulations and even laws 
responding to the reckless and fraudulent behavior that wrecked our 
economy.
  Progressive opponents of these artificial legal restraints ultimately 
succeeded, with the support of the American people, in establishing 
Social Security, minimum wage laws, and antidiscrimination laws to 
protect the American people. The programs of the New Deal that helped 
Americans through the Great Depression would be unconstitutional if 
radical conservative critics had their way. Radical conservatives who 
seek to again impose artificial legal restraints on Congress and the 
American people would abandon the New Deal programs of the 1930s such 
as social security and the Great Society programs of the 1960s such as 
Medicare to the detriment of the American people. These are the 
programs that for the last 75 years have helped the United States 
become a world leader, with the economic security of our citizens 
leading our economy to grow to lead the world.
  Millions of Americans rely on Social Security, Medicare, unemployment 
benefits, minimum wage laws and other programs that protect American 
families in tough economic times such as these. This is no academic 
discussion. This radical conservative agenda is a threat to Federal 
disaster relief, environmental regulations, and even laws responding to 
the reckless and fraudulent behavior that wrecked the economy. 
America's great safety net for those in need would be left in tatters 
if this outmoded legal doctrine were to take root.
  Ask our fellow Americans in the gulf, those who have lost their jobs 
in the recession and those who have lost their homes, whether the Court 
should adopt this radical view of the limits of Congress's power to 
help them. Ask them if they want to roll back the clock and overturn 
laws passed by Congress to protect hard-working Americans. The 
conservative agenda to restore the Lochner era would leave hard-working 
Americans without the protection their lifetimes of hard work have 
earned them.

[[Page 15004]]

  The fact that Elena Kagan will not state that she shares the views of 
those who opposed helping hard-working Americans obtain access to 
affordable health care does not mean she is outside the mainstream--far 
from it. The fact that some Republican critics opposed health care 
reform does not make it unconstitutional.
  The Constitution in fact provides a clear basis for Congress' 
authority to enact health care insurance reform. Our Constitution 
begins with a preamble that sets forth the purposes for which ``We the 
People of the United States'' ordained and established it. Among the 
purposes set forth by the Founders was that the Constitution was 
established to ``promote the general Welfare.'' It is hard to imagine 
an issue more fundamental to the general welfare of all Americans than 
their health. The authority and responsibility for taking actions to 
further this purpose is vested in Congress by article I of the 
Constitution. As I stated earlier, article I, section 8, sets forth 
several of the core powers of Congress, including the general welfare 
clause, the commerce clause and the necessary and proper clause. These 
clauses form the basis for Congress's power.
  Any serious questions about congressional power to take comprehensive 
action to build and secure the social safety net have been settled over 
the past century. As noted by Tom Schaller, enforcing the individual 
mandate requirement by a tax penalty is far from unprecedented, despite 
the claims of critics. Individuals pay for Social Security and 
Medicare, for example, by payroll taxes collected under the Federal 
Insurance Contributions Act, FICA. These FICA payments are typically 
collected as deductions and noted on Americans' paychecks every month. 
Professor Schaller wrote:

       These are the two biggest government-sponsored insurance 
     programs administered by the [Federal Government], and two of 
     the largest line items in the federal budget. These paycheck 
     deductions are not optional, and for all but the self-
     employed they are taken out immediately.

  The individual mandate requirement in the Patient Protection and 
Affordable Care Act is hardly revolutionary when viewed against the 
background of Social Security and Medicare that have long required 
individual payments.
  Congress has woven America's social safety net over the last 
threescore and 13 years, beginning before I was born. Congress's 
authority to use its judgment to promote the general welfare cannot now 
be in doubt. America and all Americans are the better for it. Growing 
old no longer means growing poor. Being older or poor no longer means 
being without medical care. These developments are all due in part to 
congressional action.
  The Supreme Court settled the debate on the constitutionality of 
Social Security more than 70 years ago in three 1937 decisions. In one 
of those decisions, Helvering v. Davis, Justice Cardozo wrote that the 
discretion to determine whether a matter impacts the general welfare 
falls ``within the wide range of discretion permitted to the 
Congress.'' Turning then to the ``nation-wide calamity that began in 
1929'' of unemployment spreading from state to state throughout the 
Nation, Justice Cardozo wrote of the Social Security Act: ``The hope 
behind this statute is to save men and women from the rigors of the 
poor house as well as from the haunting fear that such a lot awaits 
them when journey's end is near.'' In the Supreme Court's decision 
upholding the constitutionality of Social Security, Justice Benjamin 
Cardozo, one of our greatest jurists, explained that it is the people's 
elected representatives in Congress that consider the general welfare 
of the country and laws to secure it. He recognized that it was the 
people's wisdom as enacted through their representatives that was to be 
respected, not the personal preference of a small elite group of 
judges.
  The Supreme Court reached its decisions upholding Social Security 
after the first Justice Roberts--Justice Owen Roberts--in the exercise 
of good judgment and judicial restraint began voting to uphold key New 
Deal legislation. He was not alone. It was Chief Justice Hughes who 
wrote the Supreme Court's opinion in West Coast Hotel v. Parrish 
upholding minimum wage requirements as reasonable regulation. The 
Supreme Court also upheld a Federal farm bankruptcy law, railroad labor 
legislation, and the Wagner Act on labor relations. In so doing, the 
Supreme Court abandoned its judicially created veto over congressional 
action with which it disagreed on policy grounds and rightfully 
deferred to Congress's constitutional authority.
  The opponents of health care insurance reform are now opposing the 
nomination of Elena Kagan and now going to the extreme to attempt to 
call into question the constitutionality of America's established 
social safety net. They would turn back the clock to the hardships of 
the Great Depression, and thrust modern America back into the 
conditions of a Charles Dickens novel. That path should be rejected 
again now, just as it was when Americans confronted great economic 
challenges more than 70 years ago. To attempt to strike down principles 
that have been settled for nearly three-quarters of a century is wrong, 
damaging to the Nation, and would stand the Constitution on its head.
  Due to Republican obstruction, it took an extraordinary majority of 
60 Senators, not a simple majority of 51, for the Senate's will to be 
done. The fact that Senate Republicans disagree with the effort to help 
hardworking Americans obtain access to affordable health care does not 
make it unconstitutional. As Justice Cardozo wrote for the Supreme 
Court 73 years ago in upholding Social Security:

       [W]hether wisdom or unwisdom resides in the scheme of 
     benefits set forth . . . it is not for us to say. The answer 
     to such inquiries must come from Congress, not the courts.

  Justice Cardozo understood the separation of powers enshrined in the 
Constitution and the powers entrusted by our Constitution to Congress. 
This is true judicial modesty reflecting the understanding of the 
respective roles of Congress and the courts. Surely when Congress acts 
to provide for the general welfare of all Americans it does so pursuant 
to its constitutional authority.
  I believe that Congress was right when it decided that the lack of 
affordable health care and health insurance and the rising health care 
costs that burden the American people are problems, ``plainly national 
in area and dimensions.'' Those were the words Justice Cardozo used to 
describe the widespread crisis of unemployment and insecurity during 
the Great Depression. I believe that it was right for Congress to 
determine that it is in the general welfare of the Nation to ensure 
that all Americans have access to affordable quality health care. 
Whether other Senators agree or disagree, I would hope that none would 
contend that we should turn back the clock to the Great Depression when 
conservative activist judges prevented Congress from exercising its 
powers, making its legislative determinations and helping the American 
people through tough economic times. Sadly, some are making precisely 
that argument and contend that this settled meaning of the Constitution 
should be upended.
  The dark days of unbridled conservative judicial activism in which 
Congress's hands were tied from outlawing child labor and enacting a 
minimum wage and social security are long gone and better left behind. 
The Constitution, Supreme Court precedent, our history and the 
interests of the American people all stand on the side of Congress's 
authority to enact health care insurance reform legislation.
  Under article I, section 8, Congress has the power ``to regulate 
Commerce
. . . among the several States.'' Since at least the time of the Great 
Depression and the New Deal, Congress has been understood and 
acknowledged by the Supreme Court to have power pursuant to the 
commerce clause to regulate matters with a substantial effect on 
interstate commerce. That is consistent with Elena Kagan's testimony.
  In Solicitor General Kagan's responses to questions about the 
commerce clause I heard an echo of Justice Cardozo's explanation for 
why Social Security is constitutional and of Justice Oliver Wendell 
Holmes's famous

[[Page 15005]]

dissent in Lochner. In particular, I recall Solicitor General Kagan's 
response to a question from Senator Coburn that he later admitted was 
intended to get her to signal how she would decide a constitutional 
challenge to health care insurance reform. He asked Solicitor General 
Kagan what she thought of a hypothetical law requiring Americans to eat 
three vegetables a day. She went on to explain:

       I think the question of whether it's a dumb law is 
     different from . . . the question of whether it's 
     constitutional, and . . . I think that courts would be wrong 
     to strike down laws that they think . . . are senseless just 
     because they're senseless.

  The Supreme Court long ago upheld laws like the Fair Labor Standards 
Act against legal challenges, overruling its decision barring Congress 
from outlawing child labor and establishing basic working conditions 
such as a minimum wage. The days when women and children could not be 
protected are gone. The time when the public could not be protected 
from sick chickens infecting them are gone. The years when farmers 
could not be protected from market failures or natural disasters are 
gone. The era of conservative activist judges voiding regulation that 
did not guarantee profits to corporations should be gone. The reach of 
Congress's commerce clause authority has been long established and 
well-settled. Solicitor General Kagan's answer to Senator Coburn's 
question reflects not only this well-settled understanding, but also 
the understanding of the proper roles of each of the branches that was 
restored when the Supreme Court rejected the misguided conservative 
activism of the Lochner era.
  Since the great Chief Justice Marshall's interpretation of the 
commerce clause in 1824, Congress has been understood and acknowledged 
by the Supreme Court to have the power ``to prescribe rules'' to govern 
commerce that ``concerns more than one State.'' It was this same 
understanding that Justice Cardozo followed in upholding the Social 
Security Act and that Justice Felix Frankfurter later praised as Chief 
Justice Marshall's extraordinary achievement of capturing, for all 
time, the essential meaning of the commerce clause. Pursuant to this 
understanding of its power under the commerce clause, Congress enacted 
not only Federal disaster relief from the 18th century but also the 
1964 Civil Rights Act prohibiting racial discrimination by public 
accommodations and the landmark Clean Air and Clean Water Acts, both of 
which President Nixon signed into law. Would conservative activists now 
argue that these acts, the Civil Rights Act, the Clean Air Act and the 
Clean Water Act, should suddenly be declared unconstitutional as beyond 
Congress's power?
  Even recent decisions by a Supreme Court dominated by Republican-
appointed justices have affirmed this rule of law. In 2005, the Supreme 
Court ruled in Gonzales v. Raich that Congress had the power under the 
commerce clause to prohibit the use of medical marijuana. This was 
upheld even though the marijuana was grown and consumed at home. It was 
upheld on the same rationale as Wickard v. Filburn in 1942, because of 
its impact on the national market for marijuana. Yet Republican 
Senators and conservative ideologues contend that Wickard should be 
discarded. Would they also demand that Federal laws against drugs be 
declared unconstitutional?
  Justice Anthony Kennedy and Justice Sandra O'Connor, both 
conservative Justices appointed by Republican Presidents, astutely 
noted in their 1995 concurrence in United States v. Lopez:

       [T]the Court as an institution and the legal system as a 
     whole have an immense stake in the stability of our Commerce 
     Clause jurisprudence as it has evolved to this point. [That] 
     fundamental restraint on our power forecloses us from 
     reverting to an understanding of commerce that would serve 
     only an 18th-century economy . . . and mandates against 
     returning to the time when congressional authority to 
     regulate undoubted commercial activities was limited by a 
     judicial determination that those matters had an insufficient 
     connection to an interstate system.

  They are right as a matter of law and right when it comes to the 
interests of the American people.
  The Constitution also provides in article I, section 8, that Congress 
has the power ``to make all Laws which shall be necessary and proper 
for carrying into Execution the foregoing Powers and all other Powers 
vested by his Constitution in the United States.'' The Supreme Court 
settled the meaning of the necessary and proper clause almost 200 years 
ago in Justice Marshall's landmark decision for the Supreme Court in 
McCullough v. Maryland, during the dispute over the National Bank. 
Justice Marshall wrote that ``the clause is placed among the powers of 
Congress, not among the limitations on those powers.''
  He continued:

       Let the end be legitimate, let it be within the scope of 
     the Constitution, and all means which are appropriate, which 
     are plainly adopted to that end, which are not prohibited, 
     but consistent with the letter and spirit of the 
     Constitution, are constitutional.

  He concluded by declaring, in accordance with a proper understanding 
of the necessary and proper clause, that Congress should not be 
deprived ``of the capacity to avail itself of experience, to exercise 
its reason, and to accommodate its legislation to human affairs'' by 
judicial fiat. Chief Justice Marshall understood the Constitution, knew 
its text and knew the Framers. He rejected the constraints on Congress 
that conservative activists now propose in order to empower 
conservative judicial activism.
  The necessary and proper clause goes hand in hand with the commerce 
clause to ensure congressional authority to regulate activity with 
economic impact. Just this year the Supreme Court upheld provisions of 
the Adam Walsh Child Protection and Safety Act, a law we passed to 
allow for the civil commitment of sexually dangerous Federal prisoners, 
which was based on the commerce clause and the necessary and proper 
clause of the Constitution. As Justice Breyer wrote for seven Justices, 
including Chief Justice Roberts:

       [T]he Necessary and Proper Clause makes clear that the 
     Constitution's grants of specific federal legislative 
     authority are accompanied by broad power to enact laws that 
     are ``convenient, or useful'' or ``conducive'' to the 
     authority's ``beneficial exercise.''

  Congress passes laws like the Adam Walsh Act every year to protect 
the American people. Would those who want to redraft and limit the 
Constitution really want to declare the Adam Walsh Act and its 
provisions against pedophiles unconstitutional?
  Solicitor General Kagan's testimony shows that she both understands 
and recognizes, in accordance with the longstanding judgments of both 
Congress and the Supreme Court, that Congress's power to legislate 
under the commerce clause power and the necessary and proper clause is 
broad but not unlimited. Indeed, she agreed with the Senator from Texas 
that the Supreme Court's decisions in Lopez and Morrison limit 
Congress's power to legislate ``when the activity that's being 
regulated is not itself economic in nature and is activity that's 
traditionally been regulated by the States.'' But, she noted that ``to 
the extent that Congress regulates the channels of commerce, the 
instrumentalities of commerce, and . . . things that substantially 
affect interstate commerce, there the Court has given Congress broad 
discretion.'' She is right as a matter of law. The American people are 
able to act through their elected representatives in Congress to secure 
the blessings of liberty because of this meaning of our Constitution.
  Through Social Security, Medicare, and Medicaid, Congress established 
some of the cornerstones of American economic security. And 
comprehensive health insurance reform has now joined them. Congress has 
acted within its constitutional authority to legislate for the general 
welfare of all Americans, whether they are from Vermont or West 
Virginia or Alabama or anywhere else. No conservative activist court 
should overstep the judiciary's role by seeking to turn back the clock 
and deny a century of progress.
  Those who would corrupt the Constitution by trying to revive the 
Lochner era are intent on a results-oriented litmus test. This litmus 
test would lead them now not just to vote

[[Page 15006]]

against this nomination and the confirmation of Justice Thurgood 
Marshall as they have said, but also against Senate confirmation of 
Justice Sandra Day O'Connor, Justice David Souter, Justice John Paul 
Stevens, and Justice Anthony Kennedy--four Justices appointed by 
conservative Republican Presidents, all nominations I voted to confirm.
  It is interesting. I was here when John Paul Stevens' nomination came 
up. He was seen as a conservative from Illinois. He was nominated by a 
conservative President, Gerald Ford. He nominated him, and 2\1/2\ weeks 
later, the Senate, which was overwhelmingly Democratic, voted 
unanimously to confirm Justice John Paul Stevens. I have not always 
agreed with every decision of his, but, boy, I have agreed with my vote 
for his confirmation.
  With this litmus test I mentioned, it is not just Chief Justice Earl 
Warren, and Justice William Brennan and Justice Thurgood Marshall whose 
jurisprudence they are rejecting. Using these results-oriented litmus 
tests would require us to reject the vast majority of Justices who have 
served honorably on the U.S. Supreme Court, including Justice Benjamin 
Cardozo, Justice Oliver Wendell Holmes, Jr., Justice Harlan Fiske 
Stone, and Justice Charles Evans Hughes. I assume they would, as well, 
reject the greatest judge not to have been appointed to the Supreme 
Court, the Second Circuit's Judge Learned Hand, because he had been an 
outspoken critic of the so-called economic due process doctrine that 
allowed activist conservatives to substitute their views for those of 
Congress. Indeed, if they were to be consistent, they would have to 
rethink their support for the current Chief Justice, John Roberts, who 
testified at his confirmation hearing that during the Lochner era, when 
the Supreme Court was striking down economic regulations in the late 
1800s to the early 1930s, to quote John Roberts, ``it's quite clear 
that they [were] not interpreting the law, they [were] making the 
law.'' I agree with him. I will say parenthetically that I wish he had 
stayed consistent to that principle since he became Chief Justice. The 
demand by critics that Solicitor General Kagan adhere to legal views 
that would put her at odds with so many great Justices as the price of 
their vote is a strong reminder of how far many are seeking to stray 
from basic constitutional principles and traditions.
  We do not need judges or Justices to pass a litmus test from either 
the right or the left. In fact, I have urged Senators--they have heard 
me say this many times--do not listen to the single issue or special 
issue groups on either the right or the left when it comes to the 
Supreme Court. We have 300 million Americans in this great country. 
Most of the Justices we vote on will be here long after any one of us 
leaves this Chamber. There are only 100 Americans who actually get to 
vote on them. There are actually 101 people who are involved in this 
choice--first, the President, who nominates the person, but he cannot 
appoint the person unless we advise and consent. So we have 101 people 
with this awesome duty to pick somebody and to vote on somebody who is 
going to be there to protect the justice and the rights of all 300 
million Americans. It is an awesome responsibility.
  I tell groups of either the right or the left--and I have heard from 
many of them over the years on all these nominees on whom I voted--I am 
going to make up my own mind. I am going to bring my own Vermont 
principles, my own sense of Vermont fairness, my own experience, my own 
judgment to bear, and then I will make up my mind. I urge all Senators 
to do that. Ignore the special interest groups on the right or the 
left. Make up your own mind.
  As I said, we do not need judges or Justices who would pass a litmus 
test from the right or the left. We need judges and Justices who will 
respect the laws as passed by Congress and appreciate that adherence to 
precedence is a foundation of public confidence in our courts.
  (Mrs. SHAHEEN assumed the chair.)
  Mr. LEAHY. It is important that we restore public confidence in our 
courts. They do protect our rights. They do protect the Constitution. 
But we have to make sure we respect what they do. We need judges and 
Justices who will fairly apply the law and use common sense, Justices 
and judges who appreciate the proper role of the courts in our 
democracy and make decisions in light of the fundamental purposes of 
the law. This is the standard I applied when reviewing this nomination. 
It is the same standard I applied to every Supreme Court nomination, 
including six Justices nominated by Republican Presidents for whom I 
have voted. It is a standard I believe Solicitor General Kagan has met.
  Solicitor General Kagan not only has the necessary qualifications to 
be a Supreme Court Justice but has also demonstrated her respect for 
the rule of law, her appreciation for the separation of powers, and 
understands the meaning of our Constitution. Some may not want our 
country to move forward, to make progress, to move toward a more 
perfect union. But the issue squarely before this body is whether 
Solicitor General Kagan has the necessary qualifications, respect for 
the rule of law, and judicial independence to be confirmed by the 
Senate to serve on our Nation's highest court. I believe she does. This 
Vermonter will vote for Elena Kagan to be a Supreme Court Justice, and 
I will do it proudly.
  Madam President--the Chair having changed during this speech, first 
presided over by the distinguished Senator from West Virginia, and now 
my distinguished neighbor, the State of New Hampshire--the 
distinguished Senator from New Hampshire presides. With that, I will 
close.
  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. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Madam President, I see the distinguished Senator from 
Alabama on the floor. I yield back the remainder of my time.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Madam President, I appreciate Chairman Leahy. He is a 
strong and effective leader of our committee. We agree a lot of times. 
I try to work with him, and sometimes we disagree. One thing we will 
soon be doing that I look forward to very much is going to the White 
House--maybe in 30 minutes or so--to participate in the signing of a 
bill to eliminate the vast disparity between crack and powder cocaine 
sentences. The sentencing mechanism under the guidelines I think was 
unfair and needed to be corrected. I have been working on that issue 
for some time, and so has Chairman Leahy. We certainly agree on a lot 
of issues and get some things done, but we do not agree on this 
nomination.
  The office of Justice of the U.S. Supreme Court is one of the most 
important positions in our National Government. Justices are granted a 
degree of independence unequaled anywhere in the United States. 
Justices hold lifetime terms, subject only to impeachment, and Congress 
may not even reduce their pay. Why did the Founders take such a step? 
They wanted our courts to be impartial, doing justice to the poor and 
the rich under the Constitution and laws of the United States, as their 
oath says, and they did not want them subject to political or other 
pressures that might affect their objectivity. They wanted judges who 
could do the right thing year after year, day after day.
  Presidents get to nominate, but the Senate must confirm. This advise-
and-consent power the Constitution gives is a confirmation process; it 
is not a coronation. Here, five Justices on the Supreme Court can 
hold--and four of them recently voted to, not the five necessary to 
render a majority opinion--that a company cannot publish a book or a 
pamphlet that criticizes a politician before an election. Five justices 
can hold that the government can allow States and cities to deny 
Americans the personal right to keep and bear arms, a right clearly 
stated in the Constitution.

[[Page 15007]]

  The American people have no direct control over these Justices. All 
they have and what they have a right to expect is that our Justices 
exercise self-control year after year, decade after decade. If this 
young nominee, Elena Kagan, were to serve to the age of the individual 
she seeks to replace, she would serve 38 years on the Supreme Court.
  Well, I am not able to support Elena Kagan for this office. I believe 
she does not have the gifts and the qualities of mind or temperament 
one must have to be a Justice. Worse still, she possesses a judicial 
philosophy that does not properly value discipline, restraint, and 
rigorous intellectual honesty. Instead, she seems to admire the view, 
and has as her judicial heroes, judges who favor expansive readings of 
what they call the living Constitution; whereby, judges seek--and in 
President Obama's words, who certainly shares this view--to advance ``a 
broader vision of what America should be.''
  Well, I don't believe that is a responsibility or a power given to 
judges--to advance visions of what America should be. Whose vision is 
it they would advance, I would ask. It would be the judge's vision. But 
they weren't appointed for that purpose. They were appointed to 
adjudicate cases.
  President Obama's judicial philosophy, I think, is flawed, and I 
certainly think Ms. Kagan shares his philosophy. The President 
basically said so when he appointed her. Her friends say it is so. Her 
critics say so. Her record of public action says so, and the style and 
manner of her testimony at the hearing evidenced such an approach to 
judging. I don't think it is a secret. I think this is pretty well 
known, that this is not a nominee committed to restraint or objectivity 
but one who believes in the power of judges to expand and advance the 
law and visions of what the judge may think is best for America.
  Ms. Kagan has been described as collegial, engaging, a consensus 
builder. These are fine qualities in many circumstances, and I am sure 
she possesses them. She seems to. But as to personal discipline, 
clarity of mind, the ability to come quickly to the heart of a matter, 
objectivity or impartiality, and scrupulous intellectual honesty--
characteristics essential for a judge--not so much has been said. 
Perhaps this is so because many liberal activists in America have lost 
faith in the idea of objectivity, which means they have lost faith in 
the reality of objective truth, the finding of which--the finding of 
truth--has been the goal, the central focus of the American legal 
system since its creation.
  Our modern law school minds and some false intellectuals far removed 
from real trials--and I have had the honor and privilege to have spent 
15 years trying cases before Federal judges and so I have a sense of 
this, I truly believe--are removed from these trials and from the 
necessity of rules for civil order. They think, many of them do--these 
professors and theoreticians--that laws are just tools for the powerful 
to control the powerless and that words can't have fixed meanings. 
Things change. We can't consult 16th century dictionaries to find out 
what the Founding Fathers meant when they wrote our Constitution. 
Indeed, Justice Sotomayor recently confirmed this when she quoted, with 
approval, the line: ``There is no objectivity, just a series of 
perspectives.''
  Americans are sick of political spin by politicians, and they do not 
want it from judges. They reject judges who rely on their empathy, as 
the President said a judge must have and that is what he looks for in a 
judge. The American people don't believe judges should rely on their 
empathy to decide legal cases or seek to advance their vision of what 
America should be. They know Justices are not above the law. They know 
Justices should be neutral umpires, not taking sides in the game. Above 
all, they know judges--especially Supreme Court Justices--should not 
legislate from the bench.
  I do not desire that the Supreme Court advance my political views. It 
is enough, day after day, that the Court follows the law deciding cases 
honestly. No more should ever be asked of them. I might not agree one 
day with this case or that one, but we have a right to expect those 
judges would be objective and not promote agendas. A recent commentator 
once said: ``We liberals have gotten to the point where we want the 
court to do for us that which we can no longer win at the ballot box.''
  Well, this nominee, I think, in my honest evaluation, comes from that 
mold. Yes, she is young, but her philosophy is not. It is an old, 
bankrupt judicial activism--a philosophy the American people correctly 
reject. In her writings, her judicial heroes, her extensive political 
activities, her actions at Harvard to unlawfully restrict the military, 
her hostility to congressional actions against terrorism in a letter 
she wrote, her efforts to block restrictions on partial-birth abortion 
while in the Clinton White House, her arguments before the Supreme 
Court last year that Congress can ban pamphlets criticizing politicians 
and, perhaps the most disturbing to me as someone who spent 15 years in 
the Department of Justice, her actions as Solicitor General of the 
United States, whereby she failed to defend the don't ask, don't tell 
congressional law--not military policy, a law she had openly, deeply 
opposed but promised to vigorously defend were she to be confirmed as 
Solicitor General--leave no doubt what kind of judge she would be: an 
activist, liberal, progressive, politically minded judge who will not 
be happy simply to decide cases but will seek to advance her causes 
under the guise of judging.
  In addition, her defense of these positions at her hearings, her 
testimony, in my opinion, lacked clarity, accuracy, and the kind of 
intellectual honesty you look for in someone who would sit on such a 
high and important Court. Indeed, her testimony was curious. She failed 
to convey to the committee, in my opinion, a recognition of the gravity 
of the issues with which she had been dealing and the nature of her 
role in dealing with some of these issues that she was involved with in 
her career. She seemed to suggest that things happened around her and 
she did all things right and no one should get upset about it.
  Some of these concerns, I think, could have been overcome, had we 
seen the superb quality of testimony at her hearing as given by that of 
Justices Roberts and Alito at their hearings. But, alas, that we did 
not see, not even close. Glib, at times humorous, conversant on many 
issues but not impressive on any in a more serious way, in my view. 
Based on so little serious legal practice--only 2 years, right out of 
law school in a law firm and 14 months as Solicitor General--this 
perhaps should not be surprising. The power of the testimony of Roberts 
and Alito did not spring fully formed from their minds either, though 
both seemed to be naturally gifted in the skills needed for superior 
judges, and I fear Elena Kagan is not so blessed.
  While she is truly intelligent, the exceptional qualities of her mind 
may be better suited to dealing with students and unruly faculty than 
with the daily hard work of deciding tough cases before the Supreme 
Court. But Roberts and Alito, on the other hand, were steeped in the 
law over many years as lawyers and judges. That is who they were. That 
is their skill. That was their craft. That was their business. They 
understood it. It showed. Ms. Kagan did not show that. I believe that 
lack of experience was part of the reason her testimony was 
unconvincing.
  I think a real lawyer or experienced judge who had seen the courtroom 
and the practice of law would not have tried, as she did, to float 
their way through the hearing in the manner she did. Her testimony 
failed to evidence an understanding of the gravity of the issues with 
which she was dealing and the important nature of her role in them. She 
seemed to suggest these events just happened around her, none of which 
was her responsibility. Several times in the course of her testimony 
she inaccurately described the circumstances and the nature of the 
matters in which she had been engaged, to a significant degree. Her 
testimony was more consistent with the spin the White House was putting 
out than the truth. I was surprised and disappointed

[[Page 15008]]

that she was not more candid and did not, through accurate testimony, 
dispel some of the false spin that had been put out in her favor.
  So now we are at the beginning of the discussion of the Kagan 
nomination. While I have been firm in my criticisms of the nominee, I 
have given considerable thought to the criticism that I have made and 
tried not to be inaccurate in them. I believe they are correct. But if 
I am in error, I will be pleased to admit and correct that error. No 
nominee should have their record unfairly sullied in this great Senate. 
That would be wrong. I, therefore, ask and challenge the supporters of 
the nominee to point out any errors in my remarks as we go forth so we 
can, above all, get the facts straight.
  The matters I will set forth today and later are serious. There is 
disagreement, I believe, between what the record, the facts, and the 
testimony show and the White House spin and even the Kagan spin--and I 
use that word carefully. So let us, therefore, begin this debate in all 
seriousness. Let us get to the bottom of these matters. There is a 
truth. We can ascertain what happened. Let us find out what happened in 
these matters. Let us get to the bottom of it.
  Some raise the question of how many Republicans will vote for the 
nominee. Another question to ask is: How many Democrats will vote 
against the nominee? I call on every Senator to study the record and 
make an informed and independent decision. We are not lemmings. We have 
a constitutional duty to make an independent decision. So I urge my 
Democratic colleagues to not just be a rubberstamp, to not allow 
political pressures to influence your decisions but conduct an 
independent and fair analysis of the nominee. I believe if Senators 
strongly advocate and believe judges should follow the law, not make 
it; that they should serve under the Constitution and not above it; 
that they should be impartial and objective--if Senators believe in 
that--they should have very serious trouble with this nomination.
  At this moment I am going to briefly mention a few of the serious 
concerns that were raised in the committee. I will in greater detail go 
through each of them in the next several days. I am sure other Senators 
will talk about them also. I will attempt to do so honestly and fairly, 
and at the end I will be listening to see if somehow I have misjudged 
the nominee on these matters and whether I should change my views. But 
I am very serious when I say the actions of this nominee over the 
entirety of her career indicate an approach to judging that is 
inconsistent with the classic American view of a judge as one who shows 
restraint, who follows the law, who adjudicates the matters before the 
court, and who is objective and fair.
  One of the more serious issues that has been discussed quite a bit is 
the nominee's handling of the U.S. military while she was dean at 
Harvard. She reversed Harvard's policy and banned the military from the 
campus recruiting office. During that period of time a protest against 
the military was held. She spoke to that protest crowd while in the 
building next door a military recruiter was attempting to recruit 
Harvard students for the U.S. military.
  She participated in the writing of a brief to oppose the don't ask, 
don't tell policy which she deeply opposed.
  The U.S. military did not have a policy called don't ask, don't tell. 
That was a law passed by the U.S. Congress and signed by President 
Clinton. It was the law of the land and it was not their choice. They 
followed, saluted, and did their duty. Yet Ms. Kagan barred them from 
the campus at Harvard. On four different occasions this Congress passed 
laws to try to ensure that our military men and women, during a time of 
two wars, were not discriminated against on college campuses in this 
country. One of them was a few months before, finally, it was written 
in a way they could not figure out a way to get around it. That was 
shortly before she barred them from the campus, subjecting Harvard to 
loss of Federal funds, which resulted in the military, when they 
finally realized that she had reversed this policy and found out they 
had been stonewalled and the front door of the university had been 
closed to them, appealed to the president of Harvard University and he 
reversed her position. It was not justified. It was wrong. It should 
not have been done.
  She did not seem to complain about the policy when she worked for 
President Clinton, who signed the law. But she punished the men and 
women who were prepared to serve and defend our country, and Harvard's 
freedom to carry on whatever these silly activities they want to carry 
on. So this is not a little bitty matter.
  When she was nominated for Solicitor General, this was raised and she 
was asked what if this don't ask, don't tell law is challenged in the 
Court? We know you oppose it. We know you have steadfastly opposed it. 
Will you defend it? It is the law of the land. You will be Solicitor 
General. You represent the U.S. Government before the Supreme Court. 
Will you defend it?
  She flat out said that she would defend the laws passed by Congress 
and specifically promised to defend don't ask, don't tell. This is a 
matter of some importance. I asked her about it, gave her opportunity 
to respond. She took 10 minutes--I did not interrupt her--with her 
explanation of why she did not assert an appeal to the Ninth Circuit 
ruling that seriously undermined don't ask, don't tell, because we know 
President Obama opposes it and we know she opposed it. We know the ACLU 
opposed it. They were the litigants in this case. She met with the 
ACLU.
  The ACLU did not want the Ninth Circuit case to go up to the Supreme 
Court. Why? The reason is they expected the Supreme Court would affirm 
the law. So what did Elena Kagan do? Did she vigorously defend the law? 
Did she take the opportunity to take this case to the Supreme Court and 
seek its affirmation by the Supreme Court? No, she allowed the case to 
be sent back--without appealing it--to a lower court to go through a 
long, prolonged process of discovery and trial that is disconnected to 
the plain fact of the legality of the policy. She did not properly 
defend the laws of the United States and she did not defend the law in 
this matter.
  The Solicitor General has that duty whether they like the law or not. 
Congressional actions, when challenged, should be defended, 
particularly one so easily defended, in my opinion, as this one. I 
believe that is a serious matter, so serious that if my analysis is 
correct, that she failed to defend that action after explicitly having 
promised to do so, then this is disqualifying in itself. She would have 
allowed her personal views, political pressures from perhaps her 
appointing officer, President Obama, to influence her decision in a way 
that went against her duty as Solicitor General. We are going to talk 
about that in great detail as we go along.
  As Solicitor General in the 14 months that she was there, she 
approved a filing of a brief calling on the Supreme Court to review and 
overturn a ruling by the Ninth Circuit Court of Appeals that had 
affirmed an Arizona law that said Arizona businesses that failed to use 
E-Verify or otherwise hire people who are illegally in the country 
would lose their business license. There is a Federal statute that 
explicitly says States can revoke licenses of businesses that violate 
our immigration laws.
  This is quite a bit stronger case than the other Arizona case that I 
think is improvidently being challenged, also by the Obama Department 
of Justice. But she approved this and again the trial court had ruled 
the law was good. The Ninth Circuit, the most liberal activist circuit 
in the country, approved it unanimously, and now it is before the 
Supreme Court and now she asked that the Supreme Court take it and 
reverse that.
  I think this was bad judgment legally, and I believe it is another 
example of her personal policy views influencing the decisions she made 
as a government official--not the kind of thing you want in a Supreme 
Court Justice.
  Then there was the time she was in the Clinton White House and became

[[Page 15009]]

involved in the great debate we had in the Senate, that went on for a 
period of years, over the partial-birth abortion issue, where unborn 
babies are partially removed from the mother and there are techniques 
used to remove the child's brain. It is a horrible procedure. The 
physicians group, the American College of Obstetricians and 
Gynecologists, ACOG, had issued a finding that there was never any 
medical necessity for this horrible procedure that Senator Daniel 
Patrick Moynihan referred to as so terribly close to infanticide.
  President Clinton apparently was prepared to support a ban on this 
procedure. But Ms. Kagan, as a member of his staff, advised that it 
might be unconstitutional. In her notes from her time at the Clinton 
White House, she said the groups, that is, the pro-abortion groups--the 
groups will go crazy. She even got ACOG to issue a new statement and 
was able to influence President Clinton to oppose the legislation. Six 
or 8 years went by before we finally passed a law banning the 
procedure.
  When I raised this at her hearing, she tried to make it seem like she 
had nothing much to do with it, like she just happened to be in the 
White House. She said, ``at all times trying to ensure that President 
Clinton's views and objectives were carried forward.'' That is all I 
was doing.
  She was asked about that: If that was your view, say so.
  Well, I was just doing whatever the President wanted me to do.
  I do not think that was an accurate analysis of it. Sometime after it 
became clear that ACOG had reversed its position--it caused quite a bit 
of national controversy. She was right at the center of that, 
contacting the leaders of ACOG and prompting them to change the wording 
of their statement without talking to the professionals on the 
committee that had issued the original analysis. There was never any 
need for this kind of procedure to take place. This was concerning to a 
lot of members of the committee. Her testimony is relevant to that.
  With regard to the second amendment, she used the same language in 
her testimony to give the impression that she understood that the 
Heller and the McDonald cases, recently out of Chicago, were settled 
law and implied that if she were on the Court, she would vote to uphold 
the right to keep and bear arms, which is plainly in the Constitution. 
I went back and asked her again. Settled law became mere precedent. 
That precedent is the 5-to-4 decision in two cases, Heller and 
McDonald, where by one vote the Supreme Court is upholding the right to 
keep and bear arms. If one vote were to switch, the Court could rule 5 
to 4 that any city and any State in America could ban completely the 
right to keep and bear arms, violating what I would say are the plain 
words of the Constitution. Her actions, both as a law clerk and in the 
Clinton White House, indicate she has a hostile view to gun ownership. 
She grew up on the upper west side of New York. It is pretty clear she 
is one of a group who sees the NRA as a bad group and does not believe 
in gun ownership as a constitutional right. This is a serious matter 
because it is such a narrowly decided Court.
  Who is this nominee? We will learn more about it as the days go by. I 
believe her actions, her background, and her approach to judging is 
unhealthy. It is not the kind of thing we need on the Supreme Court. It 
evidences a tendency to promote her political agenda rather than being 
objective. Who is she? Vice President Biden's chief of staff, Ron 
Klain, a lawyer with whom she worked closely in the Clinton 
administration and a longtime friend, said of her not long ago:

       Elena is clearly a legal progressive . . . I think Elena is 
     someone who comes from the progressive side of the spectrum. 
     She clerked for judge Mikva

  A renowned Federal activist judge--

     clerked for Justice Marshall--

  One of the most activist Justices on the Supreme Court--

     worked in the Clinton administration, worked in the Obama 
     administration. I don't think there's any mystery to the fact 
     that she is, as I said, more of the progressive role than 
     not.

  What does that mean, a legal progressive? In the early 20th century, 
progressives thought that intellectuals and the elites in this country 
knew more than the great unwashed, and they were seeking to advance 
political agendas that went beyond what a lot of people thought was 
appropriate and constitutional. The progressives saw the Constitution 
as an impediment, not as a protector of our liberties, of our freedom, 
of our prosperity, of our property. They saw it as an impediment to 
getting done what they would like to do. It is a dangerous philosophy.
  Ultimately, all our liberties depend on faithful adherence to the 
Constitution--the free speech, free press, the right to a trial by 
jury. All those things that are so important to our rights are in that 
document.
  This nominee is indeed of that background. She is not sufficiently 
respectful of the plain words of the Constitution. She will be the kind 
of activist judge who seeks to advance her vision of what America 
should be. That is not an appropriate approach for a Justice on the 
Supreme Court to take. That is why I will be opposing the nomination.
  I suggest the absence of a quorum and ask unanimous consent that time 
under the quorum call be charged equally to both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCONNELL. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCONNELL. I will proceed on leader time.


                   Recognition of the Minority Leader

  The PRESIDING OFFICER. Without objection, it is so ordered.
  The minority leader is recognized.


                                  FMAP

  Madam President, the American people are getting a good reminder this 
week of why they have lost faith in Washington Democrats. Not only is 
one of the last things Democrats plan to vote on here before the August 
recess another bailout, it is also just the kind of bloated, slapdash 
affair Americans have come to expect and to loathe from Democrats in 
Washington. Basically what we are seeing here this week is the final 
act in Washington's guide for responding to a recession.
  On Thursday they threw together a bill without even knowing how much 
it would cost the taxpayers, expecting us to vote on it yesterday. When 
they found out last night it cost more than they thought it would, they 
threw another bill together and expect us to vote on that one 
tomorrow--just before Senators head out of town. This is precisely the 
kind of rushed and reckless approach to lawmaking that has most 
Americans thinking congressional Democrats can't go on their August 
recess fast enough. If it means one less bailout cobbled together 
without regard for details or its impact on the taxpayers or its impact 
on the debt, taxpayers would probably be glad to help book Democrats' 
plane tickets out of here.
  Americans are fed up. They have had enough. The trillion-dollar 
stimulus bill was supposed to be timely, targeted and temporary. Yet 
here we are, a year and a half later, and they are already coming back 
for more. The $100 billion they got for State education budgets the 
first time wasn't enough, even though more than a third of the original 
$100 billion hasn't even been spent yet, and none of the extra money 
they are asking for will necessarily be used to save teachers' jobs. 
The purpose of this bill is clear: it is to create a permanent need for 
future State bailouts, at a time when we can least afford it.
  Same goes for health care spending. The original stimulus included 
about $90 billion in additional Federal Medicaid spending. That too was 
supposed to be temporary. Yet here we are, a year and a half later, and 
they want more.
  So, as I said, the purpose of this bill is clear. It is a last-minute 
effort by Democrats in Washington to funnel more money to the public 
employee

[[Page 15010]]

unions before an election and to set the stage for the massive tax hike 
that the administration plans to spring on America's small business 
owners on January 1 of next year. Once again, Democrats are showering 
money on their favored constituencies and asking the American people to 
pay for it with higher taxes, more government, and fewer private sector 
jobs.
  It is time our friends on the other side actually do something to 
address the jobs crisis in this country. As it is, virtually every bill 
they pass adds more burdens on the very people we need to get us out of 
the recession and create jobs. If a bill doesn't kill jobs or make it 
harder to create them, they are not interested. It is time for a 
different approach. The approach of the past year and a half just is 
not working.
  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. CARDIN. Madam 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. Madam President, let me start by first expressing my 
appreciation to Senator Leahy and Senator Sessions. I have the honor of 
serving on the Judiciary Committee, and I think our leadership--our 
chairman, Senator Leahy, and our ranking Republican member, Senator 
Sessions--conducted the confirmation process in the best tradition of 
the Senate.
  We had 4 days of hearings before the Judiciary Committee. Every 
member of the committee was afforded ample opportunity to question 
Solicitor General Kagan on a far range of issues, and we got complete 
responses. We had chances for followup questions. We even had a third 
round of questioning. We had outside witnesses who were before our 
committee. We had a chance to ask them questions as third-party 
validators. We also went through tens of thousands of pages of 
documents.
  This was a very thorough confirmation process, a very open 
confirmation process, and a very fair confirmation process. I do thank 
Senator Sessions, the ranking Republican member, for the way he 
cooperated with Senator Leahy to make sure the Senate did its business 
in getting a full record before voting to confirm Elena Kagan to be an 
Associate Justice of the Supreme Court of the United States.
  Solicitor General Elena Kagan has the experience, the intelligence, 
the integrity, and the temperament to serve as an Associate Justice of 
the Supreme Court of the United States. As to her experience, she was 
the first woman Solicitor General in the history of our Nation. She was 
the first woman to be dean at the Harvard Law School. Her intelligence 
has been acknowledged by all as to her being a person who is very 
capable to be the next Associate Justice of the Supreme Court.
  Previous Solicitor Generals, including Charles Fried, Ken Starr, Ted 
Olson, and Paul Clement--Democrats and Republicans--stated that Elena 
Kagan would ``bring to the Supreme Court a breadth of experience and a 
history of great accomplishment in the law.'' They are Democratic and 
Republican former Solicitors General.
  She has the integrity. We have seen third-party validators--Democrats 
and Republicans--testify to her integrity and legal career. She 
certainly has the temperament. She put up with the Senators' 
interrogations with a calm demeanor and good humor, which I think will 
serve her well on the Supreme Court of the United States.
  She brings to this position experience from being a clerk for Justice 
Thurgood Marshall. I heard his name mentioned many times during this 
confirmation process. We in Maryland are particularly proud of Thurgood 
Marshall. He comes from the State of Maryland. He comes from Baltimore. 
He was one of the great leaders on the Supreme Court, one of the great 
lawyers of our time. I think we all are very proud of what America is 
today thanks to Justice Thurgood Marshall. I think it only adds to the 
qualifications of Solicitor General Elena Kagan to have clerked for 
Justice Thurgood Marshall.
  I heard my colleague talk about her commitment to our military. Let 
me point this out: This was a very difficult issue for Harvard Law 
School in regard to their policies. But let me quote, if I might, from 
a letter from Iraqi war veterans:

       During her time as dean, she has created an environment 
     that is highly supportive of students who have served in the 
     military. . . .Under her leadership, Harvard Law School has 
     also gone out of its way to highlight our military service. . 
     . .

  Students have complimented the way she acted as dean to support our 
veterans. She comes from a military family. In fact, during the time in 
question, the number of Harvard Law School students who were recruited 
into military service went up. So I think you have to look at the 
record. She has been extremely supportive of our veterans, extremely 
supportive of those who serve our Nation in military service.
  As a last point, let me quote from Miguel Estrada. I think most 
people know Miguel Estrada. He was nominated to the DC Circuit Court of 
Appeals and considered to be one of the conservative nominees. He said:

       If such a person, who has demonstrated great intellect, 
     high accomplishments and an upright life, is not easily 
     confirmable, I fear we will have reached a point where no 
     capable person will readily accept a nomination for judicial 
     service.

  So I would hope we all could agree that Solicitor General Elena Kagan 
is well qualified to serve as an Associate Justice on the Supreme Court 
of the United States.
  What we want from an Associate Justice is a judge who will follow 
legal precedent, giving due deference to Congress, following the best 
traditions of the Supreme Court in protecting the rights of Americans 
against the abuses of power. To me, that is judicial restraint, to stay 
within the mainstream of American values.
  I believe Solicitor General Kagan represents that best tradition of 
following legal precedent, giving due deference to Congress, standing 
for ordinary Americans against the abuse of power. For those reasons, I 
will vote to confirm her to be the next Associate Justice of the 
Supreme Court of the United States.
  During the confirmation hearings, I used that opportunity to explain 
to my constituents, indeed, to the people of this Nation, that Supreme 
Court decisions have real consequences on the lives of our 
constituents. If you are a woman, if you are a consumer, if you are a 
worker, if you are a voter, if you care about the air you breathe or 
the water you drink, you should be very concerned about Supreme Court 
decisions. It affects your life.
  I am very concerned, and I think my constituents are concerned, about 
recent 5-to-4 decisions where the majority, the so-called conservative 
Justices, legislated from the bench on the side of powerful corporate 
interests over protecting ordinary citizens.
  During the confirmation process, I raised these issues and questioned 
Solicitor General Kagan on these cases in which there were 5-to-4 
decisions, which reversed precedents. In my view, they were cases where 
they were legislating from the bench and they were restricting the 
rights of ordinary Americans.
  I mentioned the Ledbetter case. I know the Presiding Officer is very 
familiar with the Ledbetter case, in which a 5-to-4 decision from the 
Supreme Court effectively told the women of our Nation they would have 
no effective rights to bring wage discrimination cases based upon 
gender. The Supreme Court basically said the statute of limitations 
would run even if you did not have knowledge of the discriminatory act. 
Lilly Ledbetter was denied her claim as a result of that decision.
  I think it is going to be healthy for America to have more women on 
the Supreme Court of the United States. When Elena Kagan is confirmed, 
she will, for the first time in America's history, be the third woman 
out of nine on the Supreme Court of the United States. I think that is 
going to give us more commonsense justice in this Nation and certainly 
one that reflects the diversity of our country.

[[Page 15011]]

  It was not just the Ledbetter case. There have been other cases in 
which workers have found the Supreme Court has ruled on the side of 
special interest corporate America over the rights of ordinary workers. 
In the Gross case, the Supreme Court reversed precedent, here again by 
a 5-to-4 decision, and ruled that we would use a different test for age 
discrimination, effectively denying claims by those who were 
discriminated against because of their age. This is another example 
where the so-called conservative Justices on the Supreme Court reversed 
precedent, reversed the clear intent of Congress, and ruled against 
workers in favor of corporate America.
  It is not just limited to worker cases or wage cases. In the Citizens 
United case--this is a case we have talked about a great deal on the 
floor--the Supreme Court not only ruled against Congress, because we 
had legislated the McCain-Feingold bill, but ruled against prior 
Supreme Court decisions to reverse the rights of ordinary Americans in 
their election process. What the Citizens United case said is corporate 
America could spend more on elections--not already spending enough, but 
they could spend more. Even though Congress had passed bipartisan laws 
to rein in the amount of special interest corporate money and even 
though other cases were upheld by the Supreme Court, the Supreme Court 
went out of its way, by a 5-to-4 decision, to rule on the side of 
corporate America against ordinary Americans.
  Here, if I might, let me quote from Justice Stevens in his dissent. 
Justice Stevens said:

       Essentially, five Justices were unhappy with the limited 
     nature of case before us, so they changed the case to give 
     themselves an opportunity to change the law . . . there were 
     principled, narrower paths that a Court that was serious 
     about judicial restraint could have taken.

  I agree with Justice Stevens. We all talk about wanting to see 
judicial restraint. We all talk about wanting to see a Supreme Court 
that will give due respect to the actions of Congress. We talk about 
following judicial precedent. We talk about following the tradition to 
protect your constitutional rights. Well, this Supreme Court, too many 
times, by 5-to-4 decisions by the so-called conservative Justices, has 
been the most activist Court on ruling on the side of corporate America 
over ordinary Americans.
  It is also true in environmental cases--the Rapanos case. I have the 
honor of chairing the Water Subcommittee on the Environment and Public 
Works Committee. We work very hard, Congress has worked very hard, to 
protect our environment. It is not easy to get legislation passed in 
the Congress. I know all of us are frustrated that we cannot get more 
legislation passed. But we have gotten some very important bills passed 
to protect our environment, such as the Clean Water Act, and we have 
protected our waterways. The courts have upheld our power to do that.
  But in the Rapanos case, the Court ruled, again, by the narrowest of 
margins, on the side of corporate America against protecting our 
environment, against congressional intent, against prior decisions of 
the Supreme Court, ruling on the side of corporate America over 
protecting our environment for future generations.
  That was also true very recently in the Exxon v. Baker case. This was 
particularly important because it took over a decade for those who were 
damaged by the Exxon Valdez oilspill, by the episode in Alaska, to be 
able to get their claims brought through the courts. The Supreme Court, 
again, by the narrowest margin, reduced the claims of those who were 
damaged as a result of the Exxon Valdez spill.
  I know all of us are very concerned about what is happening in the 
Gulf of Mexico. We want to make sure BP is held fully accountable for 
all the damage it has caused. We in Congress need to do our work to 
make sure that is done. I expect we will get it done. But we also need 
the Supreme Court of the United States to uphold the power of Congress 
to pass laws. We are the legislative branch of government, and too 
often this so-called conservative majority of the Supreme Court has 
ruled the other way.
  I believe Solicitor General Elena Kagan will follow in the best 
traditions of the Supreme Court. She will follow legal precedent, 
allowing Congress to legislate. I say that, in part, because of her 
testimony before our committee. I questioned Solicitor General Kagan as 
to our environmental statutes and the role Congress plays.
  She replied:

       Congress certainly has broad authority under the 
     Constitution to enact legislation involving the protection of 
     our environment. When Congress enacts such legislation, the 
     job of the Court is to construe it consistent with 
     Congressional intent.

  That is the type of Justice I want on the Supreme Court in order to 
protect our air and protect our water, while yielding to Congress to 
pass the statutes rather than legislating from the bench. Basically, I 
want to make sure the next Associate Justice of the Supreme Court is on 
the side of ordinary Americans.
  Once again, let me quote from Solicitor General Kagan from her 
opening statement to the Judiciary Committee. When she was talking 
about equal justice under the law she said:

       It means that everyone who comes before the Court--
     regardless of wealth or power or station--receives the same 
     process and protections . . . What it promises is nothing 
     less than a fair shake for every American.

  That, again, is what I would like to see from the Supreme Court. I 
want them to be on the side of ordinary Americans, giving them a fair 
shake, protecting them from the abuses of power, whether those abuses 
come from the halls of government or from corporate America. In too 
many cases, this Supreme Court, by narrow margins through the more 
conservative Justices, has not been on the side of ordinary Americans. 
I believe Solicitor General Kagan, as Associate Justice Kagan, will 
give Americans a fair shake and will continue in the best traditions of 
the Supreme Court in advancing Americans' rights against the abuses of 
power. For that reason, I intend to vote for the confirmation of Elena 
Kagan to be the next Associate Justice of the Supreme Court of the 
United States.
  With that, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Udall of New Mexico). The clerk will call 
the roll.
  The assistant legislative clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from Maryland.
  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, while speaking in support of Solicitor 
General Elena Kagan, I quoted from a letter received from former 
Solicitors General in support of Solicitor General Kagan for the 
position of Associate Justice of the Supreme Court. It is dated June 
22, 2010, signed by former Solicitors General in support of the 
confirmation of Elena Kagan.
  I also spoke about the endorsement received from Miguel Estrada. He 
wrote an extraordinary letter that speaks to the qualifications of 
Solicitor General Elena Kagan for Associate Justice of the Supreme 
Court. It is addressed to the chairman of the committee, Patrick Leahy, 
and the ranking member, Jeff Sessions, dated May 14, 2010.
  I ask unanimous consent these two letters be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                    June 22, 2010.
     Hon. Patrick J. Leahy,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Jeff Sessions,
     Ranking Member, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Chairman Leahy and Senator Sessions: We write to 
     support the nomination of Elena Kagan to be the next 
     Associate Justice of the Supreme Court of the United States. 
     We have served as Solicitors General in the administrations 
     of Presidents Ronald Reagan, George H. W. Bush, William 
     Clinton, and George W. Bush. We support the Kagan nomination 
     in the same spirit of fairness and bipartisanship, and 
     deference to presidential appointments of well-qualified 
     individuals to

[[Page 15012]]

     serve on the Supreme Court, that was also due the nominations 
     of then-Judges John G. Roberts, Jr. and Samuel A. Alito, Jr. 
     to serve on the Supreme Court.
       Elena Kagan would bring to the Supreme Court a breadth of 
     experience and a history of great accomplishment in the law. 
     In addition to her most recent service as Solicitor General, 
     at various points of her career she has served as a law clerk 
     to Supreme Court Justice Thurgood Marshall, she has been in 
     private practice at one of America's leading law firms, she 
     has served in the office of the Counsel to the President, she 
     has been a policy advisor to the President, she has served as 
     a law professor at two of the nation's leading law schools, 
     Harvard and Chicago, and she has served as Dean of the 
     Harvard Law School.
       During the past year, Kagan has honored the finest 
     traditions of the Office of the Solicitor General and has 
     served the government well before the Supreme Court. The job 
     of Solicitor General provides an opportunity to grapple with 
     almost the full gamut of issues that come before the Supreme 
     Court and requires an understanding of the Court's approach 
     to numerous issues from the criteria for certiorari review to 
     the Justices' approach to oral argument. The constant 
     interaction with the Supreme Court that comes with being the 
     most-frequent litigator before the Court also ensures an 
     appreciation for the rhythms and traditions of the Court and 
     its workload. Moreover, as Solicitor General, Kagan had the 
     opportunity to work with the immensely talented career 
     lawyers in the Office of the Solicitor General, who have a 
     deep understanding of and appreciation for the Court. Kagan's 
     most recent experience as Solicitor General will serve her 
     well as she wrestles with the difficult questions that come 
     before the Court.
       The Constitution gives the President broad leeway in 
     fulfilling the enormously important responsibility of 
     determining who to nominate for seat on the Supreme Court of 
     the United States. In that spirit, we support the nomination 
     of Elena Kagan to be Associate Justice and believe that, if 
     confirmed, she will serve on the Court with distinction, as 
     have prior Solicitor Generals who have had that great honor.
           Respectfully,
     Walter Dellinger;
     Theodore B. Olsen
       On behalf of:
     Charles Fried,
       Solicitor General, 1985-1989;
     Kenneth W. Starr,
       Solicitor General, 1989-1993;
     Drew S. Days III,
       Solicitor General, 1993-1996;
     Walter Dellinger,
       Acting Solicitor General, 1996-1997;
     Seth P. Waxman,
       Solicitor General, 1997-2001;
     Theodore B. Olson,
       Solicitor General, 2001-2004;
     Paul Clement,
       Solicitor General, 2004-2008;
     Gregory G. Garre,
       Solicitor General, 2008-2009.
                                  ____



                                  Gibson, Dunn & Crutcher LLP,

                                     Washington, DC, May 14, 2010.
     Hon. Patrick Leahy,
     Chairman, Senate Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Jeff Sessions,
     Ranking Member, Senate Committee on the Judiciary, U.S. 
         Senate, Washington, DC.
     Re: Nomination of Elena Kagan.

       Dear Chairman Leahy and Senator Sessions: I write in 
     support of Elena Kagan's confirmation as an Associate Justice 
     of the Supreme Court of the United States. I have known Elena 
     for 27 years. We met as first-year law students at Harvard, 
     where we were assigned seats next to each other for our 
     classes. We were later colleagues as editors of the Law 
     Review and as law clerks to different Supreme Court Justices; 
     and we have been friends since.
       Elena possesses a formidable intellect, an exemplary 
     temperament and a rare ability to disagree with others 
     without being disagreeable. She is calm under fire and mature 
     and deliberate in her judgments. Elena would also bring to 
     the Court a wealth of experience at the highest levels of our 
     government and of academia, including teaching at the 
     University of Chicago, serving as the Dean of the Harvard Law 
     School and experience at the White House and as the current 
     Solicitor General of the United States. If such a person, who 
     has demonstrated great intellect, high accomplishments and an 
     upright life, is not easily confirmable, I fear we will have 
     reached a point where no capable person will readily accept a 
     nomination for judicial service.
       I appreciate that considerations of this type are 
     frequently extolled but rarely honored by one side or the 
     other when the opposing party holds the White House. I was 
     dismayed to watch the confirmation hearings for then-Judge 
     Alito, at the time one of our most distinguished appellate 
     judges, and find that they ranged from the anodyne and 
     uninformative to the utterly disgraceful. And one could 
     readily identify members of the current Senate majority, 
     including several who serve on the Judiciary Committee, who, 
     when they previously assessed the judicial nominees of the 
     other party, earnestly articulated many of the same 
     objections that doubtless will be raised against Elena (such 
     as a lack of judicial experience, a perceived absence of a 
     ``paper trail,'' or whether the nominee's views truly are in 
     the legal mainstream). I respectfully submit that it brings 
     no credit to our government, and risks affirmative harm to 
     our courts, when our elected representatives simply swap 
     talking points--emphasizing the same considerations they 
     previously minimized or derided--only to revert to their 
     former arguments as soon as electoral fortunes turn.
       Lest my endorsement of Elena's nomination erode the support 
     she should receive from her own party, I should make clear 
     that I believe her views on the subjects that are relevant to 
     her pending nomination--including the scope of the judicial 
     role, interpretive approaches to the procedural and 
     substantive law, and the balance of powers among the various 
     institutions of government--are as firmly center-left as my 
     own are center-right. If Elena is confirmed, I would expect 
     her rulings to fall well within the mainstream of current 
     legal thought, although on the side of what is popularly 
     conceived of as ``progressive.'' This should come as a 
     surprise to exactly no one: One of the prerogatives of the 
     President under our Constitution is to nominate high federal 
     officers, including judges, who share his (or her) governing 
     philosophies. As has often been said, though rarely by 
     senators whose party did not control the White House at the 
     time, elections have consequences.
       Elena Kagan is an impeccably qualified nominee. Like Louis 
     Brandeis, Felix Frankfurter, Robert Jackson, Byron White, 
     Lewis Powell and William Rehnquist--none of whom arrived at 
     the Court with prior judicial service--she could become one 
     of our great Justices. I strongly urge you to confirm her 
     nomination without delay.
           Very truly yours,
                                                Miguel A. Estrada.

  Mr. CARDIN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. Mr. President, I rise to speak in support of the 
nomination of Elena Kagan to be an Associate Justice on the Supreme 
Court.
  Having served on the Senate Judiciary Committee now for 17 years, I 
have seen the impact that new Justices have on the Court, and I 
strongly believe these votes are among the most important we cast in 
this Chamber.
  There is no question that the confirmation process has become heated 
in recent years. Outside interest groups and the 24-hour news cycle 
have placed far too much emphasis on sound bites, half truths, and 
hyperbole. But none of this should obscure the fact that these are, in 
fact, important votes because the stakes are high.
  A Supreme Court Justice, once confirmed, will serve a life 
appointment on a Court that is truly foundational to our democratic 
system.
  For over 200 years, our independent judiciary has served as a model 
to the world. We have watched as other countries have struggled with 
courts that have become beholden to political pressures or fallen 
subject to corruption.
  I think of Pakistan, where in 2007 President Musharraf proclaimed a 
state of emergency and used it to suspend the country's constitution 
and remove justices from the supreme court; or Mexico, where corruption 
is so bad that in 2008 President Calderon called for a fundamental 
redesign of the entire judicial system.
  In the United States we have guarded our judiciary, and it has served 
us well. Our Supreme Court has acted as a true check on government 
abuses, as a reliable and impartial tribunal for the resolution of 
private disputes, and as a final arbiter where the American people can 
come to seek protection of their fundamental constitutional rights.
  As Justice Breyer said in a recent public address, the virtue is that 
``a

[[Page 15013]]

country of 300 million very diverse people will resolve their 
differences under law and not with guns on the street or through 
riots.''
  In the context of world history, this is most impressive.
  When it comes to the Supreme Court, nominations merit careful 
attention as well because any one Justice can have a substantial effect 
on the Court's rulings.
  The cases that reach the Supreme Court are not easy ones. When the 
law is clear, a case is settled by the parties or resolved by the 
district courts or the courts of appeal. It is when the law is open to 
multiple interpretations or when constitutional values must be weighed 
against each other that a case is likely to reach the Supreme Court.
  In these cases, decisions are not automatic. Instead, each of the 
nine Justices must examine the facts, study the law, and reach his or 
her best conclusion about what the law requires. The Court's rulings 
stand not just as abstract statements for the law books but binding 
decisions with lasting impact on the lives of the American people.
  There are examples in the newspaper every day. In 2005, the Justices 
held that a school district in Seattle had violated the equal 
protection clause by using race as one of a series of factors in 
assigning students to schools within that district. The real impact of 
this will be to make it far more difficult for school administrators to 
maintain racial diversity in our public schools.
  Another example: In a recent antitrust case--Leegin Creative Leather 
Products v. PSKS--the Justices put forth a new interpretation of the 
law that will allow manufacturers to set minimum prices for certain 
products. What this means for Americans is, when they go to the store, 
they may find that a particular electronic device or even a shampoo has 
the same price at every store and can never be put on sale. Legislation 
to overturn this decision is still pending before the Senate.
  In each of these cases, Justices were divided on the law. Five 
Justices agreed on the Court's ruling, but the remaining four Justices 
dissented and explained in vehement terms why they disagreed with their 
colleagues' reasoning and result. The decisions, in other words, were 
not formulaic.
  So when I undertake my constitutional role of providing advice and 
consent, I do so with the understanding that every nominee to the Court 
is not the same, and each and every one could have a lasting impact on 
the future of our country.
  With this in mind, I am very pleased to support the nomination of 
Elena Kagan to be the next Associate Justice of the United States 
Supreme Court.
  Look at her professional record. Summa cum laude and Phi Beta Kappa 
from Princeton; a master's degree in philosophy from Oxford University; 
magna cum laude from Harvard Law School; a supervising editor of the 
Harvard Law Review; legal clerkships with U.S. Circuit Court Judge 
Abner Mikva and Supreme Court Justice Thurgood Marshall; two years at 
the law firm of Williams and Connolly; a professor of constitutional 
and administrative law at the University of Chicago; a special counsel 
to the Senate Judiciary Committee for the nomination of Justice Ruth 
Bader Ginsburg; an associate White House counsel to President Clinton; 
the deputy director of President Clinton's Domestic Policy Council; a 
professor at Harvard Law School; the first woman dean of Harvard Law 
School; the first woman to ever serve as the Solicitor General of the 
United States.
  That is an amazing background. You would think she is 106 instead of 
a very young woman.
  It is easy to see why her name has so often appeared on short lists 
for the Supreme Court. She is a woman of repeated firsts. If confirmed, 
she will be the fourth--not the first--woman to sit on the Supreme 
Court.
  Frankly, I have been surprised to hear some of my colleagues question 
Elena Kagan's credentials for the Court.
  Let me start with the argument made by some that her record is 
somehow inadequate because she lacks prior judicial experience.
  It is true that all nine Justices on the current Supreme Court come 
directly from the U.S. Court of Appeals. But that is a historic 
anomaly. It has never happened before. In fact, in the history of the 
Court, approximately one-third of our Justices have come to the bench 
with no prior experience as a judge.
  When the President announced this nominee, Justice Scalia, for one, 
said he was happy to see that she is not a Federal judge and not a 
judge at all. Justice Felix Frankfurter went much further, stating in a 
speech in 1957:

       One is entitled to say, without qualification, that the 
     correlation between prior judicial experience and fitness for 
     the functions of a Supreme Court is zero. The significance of 
     the greatest among the justices who have had such experience, 
     Holmes and Cardozo, derived not from that judicial 
     experience, but from the fact they were Holmes and Cardozo.

  In my own view, judicial experience is a useful background, but it is 
only one of many, and it is a background that is well represented on 
the Court today. As a matter of fact, it is entirely represented on the 
Court today.
  The point is this: When we examine Elena Kagan's records, we should 
not allow the characteristics of the current Court to make us 
shortsighted. In the course of American history, the Senate has 
confirmed Justices with a broad variety of backgrounds--Justices who 
were law professors, such as Felix Frankfurter; attorneys in private 
practice, such as Warren Burger; elected officials, such as John 
McKinley, Earl Warren, and James Byrnes; and over 10 percent of our 
Justices have--like Elena Kagan--come directly from the executive 
branch, with no judicial experience in between. These include Chief 
Justice William Rehnquist, who was Assistant Attorney General; Justice 
Byron White, who was Deputy Attorney General; Justice Robert Jackson 
and Chief Justice Harlan Fiske Stone, who were both the Attorney 
General of the United States; and Chief Justice John Marshall, who was 
the Secretary of State.
  Again, these are Justices who distinguished themselves on the Court, 
who came directly from the political experience. In my mind, the 
President has made a wise choice with this nomination because, in 
addition to this woman's impressive brain power--and I sat there and 
listened to her hour after hour keep her calm, show humor, and display 
an impressive ability to cite cases, and even footnotes of those 
cases--she brings the valuable attribute of having first-hand working 
knowledge of all three branches of government. If confirmed, she, 
Justice Breyer, and Justice Thomas, will be the only Justices to share 
that distinction.
  Take her experience with the Supreme Court itself. As a ``27-year-old 
pipsqueak,'' as she said before the committee, Elena Kagan had the 
privilege of working as a law clerk on the Supreme Court to Justice 
Thurgood Marshall. The job itself is prestigious, and it is impressive 
that Kagan was selected. The real value, however, was in giving Kagan 
an inside view of the Court through the eyes of one of our great 
Justices, the lawyer who argued Brown v. Board of Education, the first 
African-American Justice on the Supreme Court, and a man who brought to 
life the Court's most basic promise of ``equal justice under law.'' She 
had that experience.
  As Elena Kagan said at her confirmation hearing, through Justice 
Marshall, she learned that our courts are ``special as compared with 
other branches of government. In other words, that it is the courts' 
role to make sure that even when people have no place else to go, they 
can come to the courts and the courts will hear their claim fairly. 
That is a valuable lesson indeed for both a young lawyer and a new 
Supreme Court Associate Justice.''
  Today, Kagan has an equally unique perspective on the Court. As the 
Solicitor General, she sometimes is referred to as the ``tenth 
justice,'' because there is no other lawyer who interacts as frequently 
with the Justices. In her time as Solicitor General, she has filed 
hundreds of briefs and argued six cases before the Supreme Court 
itself. If confirmed, she will be one of only five sitting Justices who 
have appeared on the

[[Page 15014]]

advocate's side of the Supreme Court bench.
  Solicitor General Kagan also brings practical experience with the 
legislative branch. She worked in the halls of the Senate as a special 
counsel to the Senate Judiciary Committee for the Ginsburg nomination, 
and during the Clinton administration, she bore responsibility for 
advancing President Clinton's domestic policy agenda as the Deputy 
Director of the Domestic Policy Council. She served, for example, as 
the administration's chief negotiator for tobacco reform legislation. 
So she knows the ins and outs of the legislative process.
  This position enabled her to experience firsthand the hard work, 
negotiation, collaboration, and navigation of procedural obstacles that 
are required to move a difficult bill through Congress.
  When the Justices are called upon to interpret a statute, or 
determine its constitutionality, it is essential that they have some 
appreciation for the process by which that law came to be and the 
intent of Congress in writing and shaping that law. Elena Kagan knows 
the legislative process, and I believe that will serve our Nation well.
  Finally, Elena Kagan also brings experience as a participant in the 
executive branch. As the Solicitor General, she has represented the 
U.S. Government before the Supreme Court; as an associate White House 
counsel, she had to advise President Clinton on the scope of 
Presidential powers and privileges; and as a Deputy Director of the 
Domestic Policy Council, she supervised the President's policy 
initiatives not only by advancing legislation in Congress but also in 
cooperation with Federal agencies.
  Already, the debate has begun among legal commentators about whether 
Kagan's work on the executive branch will skew her rulings in key 
cases--we heard this earlier this morning--dealing with the scope of 
the President's powers with respect to indefinite detention, 
warrantless surveillance, or the use of force outside of a declaration 
of war.
  The lessons of history again provide perspective here. I think of 
Justice Robert Jackson, a former Attorney General of the United States, 
who wrote an opinion that now stands as the cornerstone for all 
analysis--and I mean that--of limits on executive power. We have heard 
this quoted by virtually every nominee before the Judiciary Committee 
when a question of executive power is levied.
  In the famous Youngstown case, in 1952, the Court was called upon to 
decide whether the President's authority as Commander in Chief allowed 
him to seize the Nation's steel mills in order to ensure sufficient 
wartime production to meet the Defense Department's needs for the 
Korean war.
  In his prior role as the Attorney General of the United States, 
Robert Jackson had vigorously defended the President's prerogative to 
take steps necessary to advance the Nation's war effort. But as Justice 
Jackson, he took a different tack. He agreed with the majority that the 
President did not have the authority to seize the private steel mills, 
but in doing so, he set forth a compromise framework, stating that the 
President's power was greatest when he acted pursuant to an act of 
Congress, in a zone of ``twilight'' when the Congress has not spoken, 
and at its lowest ebb, when he acted contrary to the stated will of the 
Congress.
  When a colleague pointed out that Justice Jackson's compromise 
framework differed from the position he had taken as Attorney General, 
he replied that a Justice does not ``bind present judicial judgment by 
earlier partisan advocacy.'' That is a very profound statement from a 
great Justice, who wrote an opinion that has stood the test of time.
  I tell this story to make this point: Elena Kagan's clerkship for 
Justice Marshall, her work with the Congress in the 1990s, and the 
positions she takes now as Solicitor General cannot forecast, with any 
certainty, what results she will reach in cases before the Court. I 
think Justice Jackson is living proof of that. However, they do provide 
important assurance that she will appreciate the core principles and 
perspectives that undergird the work of each and every branch of this 
government. Like Justice Jackson, this has the potential to make her a 
very persuasive and impressive Justice.
  In sum, I believe Elena Kagan's professional background makes her 
superbly qualified to sit on the Supreme Court.
  An excellent professional background is, of course, a necessary 
qualification, but a nominee must also show that he or she has the 
appropriate judicial temperament, has a commitment to follow the law, 
and brings a judicial philosophy that will not pull the Court outside 
of the mainstream. And I have confidence in her in each of these areas.
  The Senate Judiciary Committee has received over 170,000 pages of 
documents spanning Kagan's entire career. She testified before us for 
18 hours over a space of 3 days. She has answered over 200 additional 
questions for the record, and scores of letters have been sent to us 
regarding her qualifications. What repeatedly emerges from all of this 
is that Elena Kagan is a pragmatist, a problem-solver, and a 
conciliator.
  Her time as dean of Harvard Law School--misinterpreted often--paints 
a vivid picture. Elena Kagan arrived at Harvard in 1999. She was 
selected to be dean only 4 years later. She was the first woman ever 
named so--a significant accomplishment in itself.
  What is most important, however, is that during her time at Harvard, 
she developed a reputation as a steady leader who would bring all sides 
to the table and work to solve a problem. As described in a letter from 
69 former deans supporting her nomination, she had a unique 
``willingness to listen to diverse viewpoints and give them all serious 
consideration. She revealed a strong and consistent aptitude for 
forging coalitions that achieved smart and sensible solutions, often in 
the face of seemingly insoluble conflict.'' Quite a statement from 69 
deans of law schools.
  She brought conservative faculty, such as Bush administration lawyer 
Jack Goldsmith, to the school and rallied the faculty to come together 
to support them. Former Solicitor General Charles Fried described her 
effect this way: ``The place is like it's never been before.'' She 
``managed to calm the factionalism, so it's completely disappeared.'' 
That is according to former Solicitor General Charles Fried. The Boston 
Globe stated it more simply, saying that she ``thawed Harvard law.''
  This same knack for the pragmatic and drive toward consensus echoes 
throughout her career.
  A liberal scholar from the University of Chicago has characterized 
her academic work this way:

       She is much more of a lawyer than a partisan. She is more 
     interested as a scholar in thinking through hard issues than 
     advocating particular ideological or political perspectives.

  Former Clinton Chief of Staff John Podesta has written that during 
the Clinton administration, Kagan ``distinguished herself as deeply 
loyal to the Constitution and the law'' and said that ``on issues 
ranging from adoption to religious freedom to tobacco regulation, [she] 
eschewed ideology in favor of practical solutions.''
  Her friends, her admirers, her colleagues repeatedly describe her in 
those terms: a problem-solver, a conciliator, someone who brings people 
together even when they have very different views.
  What really impresses me, though, is what we have heard from 
conservatives. Let me note that the very fact we have heard from these 
conservatives is impressive. In today's political atmosphere, lawyers 
take a risk when they cross party lines to support Supreme Court 
nominees. Key people have done so for Kagan.
  Former Bush appointee to the Tenth Circuit and current Stanford law 
professor Michael McConnell sent us an 8-page letter outlining the 
reasons for his strong support for Kagan's nomination. Elena Kagan, he 
said, shows ``respect for opposing argument, fairmindedness, and 
willingness to reach across ideologic divides, independence, and 
courage to buck the norm.'' ``No one,'' he said, ``can foresee the 
future,

[[Page 15015]]

but I would not be surprised to find that Elena Kagan, as a Justice, 
serves more as a bridge between the factions of the Court than as a 
reliably progressive vote.''
  Senator Graham, my colleague on the committee, has pointed to the 
words of Miguel Estrada, a deeply conservative lawyer who has known 
Kagan for 27 years. He describes her as having ``a formidable 
intellect, an exemplary temperament, and a rare ability to disagree 
with others without being disagreeable. She is calm under fire and 
mature and deliberate in her judgments.''
  Today, we have a divided Court--a Court in which the Justices are 
repeatedly split five to four on major rulings of the day. These 
rulings determine what kinds of gun laws legislatures can pass to 
protect the public safety in our cities, how much money will be spent 
in Federal elections, what school districts can and cannot do to 
maintain racial diversity in our schools, what remedy our older and 
women workers have when their employers discriminate against them, what 
the appropriate role for religion is in our public life, or how much a 
company can be required to pay for causing significant harm to our 
environment. And these Justices are split down the middle on these 
major questions. They cannot find compromise or agreement. Major 
questions of the day are adjudicated on a bare majority.
  We badly need a Justice who can drive this Court toward consensus, 
and I have high hopes Elena Kagan will be just such a Justice.
  Her record also gives me confidence that she will follow the law and 
put aside any personal policy preference when deciding cases on the 
Court. In the course of her career, whether working on policy or on 
law, law has always come first. And as Solicitor General, she has 
proven quite clearly that she can put her personal views aside, filing, 
for example, a brief that defended the constitutionality of don't ask, 
don't tell. Although she is known to strongly disagree with that 
policy, she defended it and stated that the Court should let stand a 
First Circuit decision that upheld the policy because it properly 
deferred to the reasoned military judgment of the executive and 
legislative branches.
  Finally, I believe she has set forth an appropriate judicial 
philosophy. In 3 days of hearings before our committee, she has 
revealed herself as a person who believes that judges should follow 
precedent, stare decisis, and exercise restraint in their rulings. She 
said:

       [N]o judge should look at a case and say, ``Oh, I would 
     have decided it differently; I'm going to decide it 
     differently.'' [A] judge should view prior decisions with a 
     great deal of humility and deference.

  She told us:

       The time I spent in the other branches of government remind 
     me that [the role of the Court] must also be a modest one--
     properly deferential to the decisions of the American people 
     and their elected representatives.

  Hers will be a welcome voice on the Court.
  I wish to take one last moment, if I may, to address questions about 
her actions related to military recruiting at Harvard Law School 
because I believe, to some extent, they have been inaccurately 
depicted. While each Member will have to draw his or her own 
conclusions about whether Dean Kagan took the wisest course, I believe 
it is essential that we get the facts straight.
  As dean, Elena Kagan never barred military recruiters from the 
Harvard Law School campus. For one semester, after the U.S. Court of 
Appeals for the Third Circuit held that the Solomon amendment was 
unconstitutional, Kagan reverted to an earlier school policy that had 
been used for many years before she became dean. That is fact. Under 
that policy, the military recruited through the Harvard Law School 
Veterans Association but was excluded from the Office of Career 
Services. At all times, the military had access to students. In fact, 
military recruitment levels at Harvard remained steady and even 
increased at times during Kagan's tenure as dean.
  But what is most striking to me in reviewing all of this is that 
although the judiciary has heard from servicemembers on both sides of 
this issue, every report we have received from a veteran or 
servicemember who actually attended Harvard at the time has been in 
strong support of Kagan's nomination to the Court.
  Marine Corps CPT Bob Merrill graduated from Harvard Law School in 
2008. He is currently serving in Afghanistan. He writes:

       Kagan's positions never affected the services' ability to 
     recruit at Harvard. Behind the scenes the dean assured that 
     our tiny Harvard Law School Veterans Association never lacked 
     for funds or access to facilities.
       She treated the veterans at Harvard like VIPs, and she was 
     a fervent advocate of our veterans association.

  First Lieutenant David Tressler graduated from Harvard Law School in 
2007 and is currently serving in Afghanistan with the U.S. Army 
Reserves. He wrote that ``while Dean of Harvard Law School, [Kagan] 
adequately proved her support for those who had served, were currently 
serving, and all those who felt called to serve.''
  Navy Judge Advocate General Corps LT Zachary Prager graduated in 2006 
and wrote that ``Dean Kagan set a standard at Harvard of respect for 
military servicemembers'' and that without Kagan's ``leadership and 
evenhandedness as Dean,'' he would not have joined the military.
  Like Admiral Mike Mullen, Secretary of Defense Robert Gates, 
Secretary of the Navy Ray Maybus, retired General Colin Powell, myself, 
and many others in this Chamber, Kagan has said she personally 
disagrees with the don't ask, don't tell policy. And she is not alone.
  At certain dark moments in our history, institutions of higher 
education have shown a hostility in this sense, but those contexts 
should not be confused.
  To oppose the exclusionary policy of don't ask, don't tell is not to 
oppose or show hostility toward the military; it is instead to say that 
the time has come for all willing and able Americans to be able to 
serve. Like Elena Kagan, I strongly believe the criteria for military 
service in our country should be competence, courage, and a willingness 
to serve, not race, gender, or sexual orientation.
  Members should draw their own conclusions about whether Kagan made 
the right choice as dean in returning to Harvard's old recruiting 
policy in 2005, but I want to be clear that nothing in her record shows 
any hostility toward the military or the men and women who serve our 
country. In fact, servicemen and women who were there at the time have 
come forward, and the evidence is to the contrary.
  In sum, and in conclusion, I believe Elena Kagan will be a fine 
Justice on the U.S. Supreme Court, and I look forward to the day soon 
when she takes her seat as the fourth woman in history to serve on that 
Court. I am very proud to support her nomination.
  I thank the Chair, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona is recognized.
  Mr. KYL. Mr. President, Elena Kagan is intelligent, well spoken, 
personable, and schooled in the law. She is skilled in the art of 
argument, perhaps to a fault. Ignoring her own advice in the now famous 
University of Chicago Law Review article, she did not testify 
meaningfully before the Judiciary Committee, concealing and disguising 
her views and playing the same game of ``hide the ball'' as some who 
went before her, albeit with more skill. Probably because she 
criticized the practice so directly, many expected her to set a 
different standard.
  Others have asked whether Judiciary Committee hearings have been 
rendered largely free of substance and what, if anything, can be done 
about it. The former Judiciary Committee chairman, Arlen Specter, who 
lamented that Ms. Kagan, during her testimony, had not ``answered much 
of anything,'' went on to say this:

       It would be my hope that we could find some place between 
     voting no and having some sort of substantive answers. But I 
     think we are searching for a way how Senators can succeed in 
     getting substantive answers, as you advocated in the Chicago 
     Law Review, short of voting no.

  I confess that, similar to Senator Specter, I don't know how we can 
force nominees to be forthcoming except through our votes.

[[Page 15016]]

  To be clear, my threshold for supporting a nominee does not require 
answering how one would vote on issues sure to come before the Court, 
nor necessarily expressing agreement or disagreement with decisions or 
Court opinions. It is possible to learn much about a nominee's approach 
to judging without committing one to a specific position in future 
cases. What we should expect, however, is candor and a willingness to 
honestly discuss background and general constitutional principles, 
approaches to judging and writings and matters within the nominee's 
background that bear on the nominee's suitability for the bench.
  In explaining why I could not vote for now-Justice Sotomayor, I said 
I thought she was disingenuous with the Judiciary Committee. Obviously, 
reaching such a conclusion precludes support, notwithstanding other 
qualifications for the position. Reluctantly, after analysis of her 
testimony, weighed with her past writings, statements, and actions, I 
have reached the same conclusion regarding Elena Kagan.
  Exhibit A is her insistence on redefining her position on military 
recruiting on Harvard campus. Her ``separate but equal'' defense and 
attempt to downplay the steps she took to undermine the legal policy of 
don't ask, don't tell were, ultimately, unbelievable. It is almost 
unfathomable, for example, that someone with Ms. Kagan's considerable 
legal acumen could have, as she asserted, always thought we were acting 
in compliance with the Solomon amendment.
  Ms. Kagan tried to convince the Judiciary Committee that her actions 
against the military were a justifiable response to a policy she viewed 
as discriminating against homosexuals. But as Senator Sessions noted, 
her stand against homosexual discrimination was not universal. She did 
not speak out, for example, when Harvard accepted $20 million from a 
member of the Saudi royal family to establish a center for the study of 
Sharia law, even though under Sharia law ``sexual activity between two 
persons of the same gender is punishable by death or flogging.'' Her 
decision to punish the military for a policy adopted by Congress is 
especially perplexing, given her failure to express concern over or 
take action against the establishment of a center to promote a legal 
system linked to the abuse of homosexuals, women, and others.
  Exhibit B is her astonishing legal definition of what she meant in 
her effusive praise for Justice Marshall's vision of the role of the 
Court, presumably to avoid the obvious conclusion that she agreed with 
his activist approach to judging. Justice Marshall had an enormous 
influence on our jurisprudence, starting with his advocacy before--and 
most especially with--Brown v. Board of Education. But no serious 
student would argue that he didn't try to push the law as far as he 
could in furtherance of his philosophy.
  Indeed, consider the comments of another former Marshall clerk, 
liberal law professor Cass Sunstein, who now serves in the Obama 
administration, who has said this:

       A serious commitment to Marshall's vision of constitutional 
     liberty would entail an extraordinary judicial role, one for 
     which courts are quite ill suited.

  He has also acknowledged:

       Even if the best substantive theory calls for something 
     like Marshall's vision, institutional considerations would 
     argue powerfully against it.

  Ms. Kagan's attempt to define Justice Marshall's philosophy as 
meaning only that he wanted everyone to have equal access to the courts 
is--there is no other word for it--disingenuous.
  Because Ms. Kagan apparently embraces his philosophy but feared 
public acknowledgment of that would confirm the concern that she would 
be a results-oriented judge, she fudged. In doing so, she confirmed the 
suspicion and compounded the problem with deceptive testimony.
  Exhibit C is the explanation of several of her bench memos to Justice 
Marshall, insisting they did not contain her views but were merely a 
channeling of his. Ms. Kagan offered this explanation of her memo 
categorizing litigants as ``good guys'' and ``bad guys,'' another memo 
stating that the government was ``for once on the side of the angels,'' 
and a memo expressing fear that the Court might ``create some very bad 
law on abortion and/or prisoners' rights.'' Reading these memos, one 
gets the sense that Ms. Kagan was not simply channeling her boss but 
was instead expressing her own personal policy views on matters before 
the Court and that they had as much to do with who the litigants were 
as what the issues were.
  Ms. Kagan also attempted to recast her praise of Israeli Supreme 
Court Justice Aharon Barak, who, in the words of the Associated Press, 
is widely acknowledged as someone who took an activist approach to 
judging. Well, that is exhibit D. Judge Richard Posner described Judge 
Barak's history on the Israeli Supreme Court as ``creating a degree of 
judicial power undreamed of even by our most aggressive Supreme Court 
justices.''
  Under his leadership, the Israeli Supreme Court aggrandized its own 
power far beyond what even many of those on the left would view as 
acceptable in America. To cite one example of Justice Barak's judicial 
philosophy, he wrote a judge's role ``is not restricted to adjudicating 
disputes in which parties claim that their personal rights have been 
violated'' but rather ``to bridge the gap between law and society.''
  Well, bridging gaps, clearly, and using the law to address societal 
problems is not the job of the courts. That is a political approach.
  Ms. Kagan claimed, during her hearing, that her praise for Justice 
Barak had nothing to do with his leftwing judicial philosophy. But an 
examination of her statements tells a different story. In 2002, Ms. 
Kagan praised Aharon Barak for ``presiding over the development of one 
of the most principled legal systems in the world.''
  In 2006, she again heaped professional praise on Justice Barak, 
calling him her ``judicial hero.'' Ed Whelan, who is a noted legal 
commentator, summarized this event well:

       Kagan begins by referring to the portraits of four ``great 
     justices'' with whom Harvard Law School has been associated--
     Brandeis, Holmes, Brennan, and Frankfurter. But, she says, 
     ``the Harvard Law School association of which I'm most 
     proud''--more proud, that is, than of the associations with 
     Brandeis, Holmes, Brennan, or Frankfurter--``is the one we 
     have with President Barak of the Israeli Supreme Court.

  And then she continued:

       I told President Barak, and I want to repeat in public, 
     that he is my judicial hero. He is the judge or justice in my 
     lifetime whom [sic], I think, best represents and has best 
     advanced the values of democracy and human rights, of the 
     rule of law and of justice.

  During her confirmation hearing, Ms. Kagan, under oath, testified 
that she admired Justice Barak for his role in:

       . . . creating an independent judiciary for Israel. . . . 
     not for his particular judicial philosophy, not for any of 
     his particular decisions.

  That testimony cannot be squared with her public declaration that 
Justice Barak ``is the judge or justice in my lifetime whom [sic], I 
think, best represents and has best advanced the values of democracy 
and human rights, of the rule of law and of justice.''
  Exhibit E is Ms. Kagan's answer to whether she is a legal 
progressive. Her statements, again, were designed to cloud her views. 
Vice President Biden's Chief of Staff, Ron Klain--who served as chief 
counsel of the Senate Judiciary Committee, Chief of Staff to Attorney 
General Reno, and Chief of Staff to Vice President Gore--has known Ms. 
Kagan as far back as 1993, when they worked together on the Ginsburg 
hearings. At Ms. Kagan's hearing, Senator Sessions pointed out that 
after Ms. Kagan was nominated, Mr. Klain said:

       Elena [Kagan] is clearly a legal progressive. I think Elena 
     is someone who comes from the progressive side of the 
     spectrum. She clerked for Judge Mikva, clerked for Justice 
     Marshall, worked in the Clinton administration, worked in the 
     Obama administration. I don't think there's any mystery of 
     the fact that she is, as I said, of more of the progressive 
     role than not.

  Senator Sessions then asked Ms. Kagan:

       Do you agree with the characterization that you're a legal 
     progressive?


[[Page 15017]]


  She replied:

       I honestly don't know what that label means.

  So Senator Sessions pressed Ms. Kagan:

       I'm asking about his firm statement that you are a legal 
     progressive, which means something. I think he knew what he 
     was talking about. He's a skilled lawyer who's been in the 
     midst of the great debates of this country about law and 
     politics, just as you have. And so I ask you again: Do you 
     think that is a fair characterization of your views? 
     Certainly, you don't think he was attempting to embarrass you 
     or hurt you in that process.

  She again dodged with an answer that strains credulity.

       I love my good friend, Ron Klain, but I guess I think that 
     people should be allowed to label themselves. And that's--you 
     know, I don't know what that label means and so I guess I'm 
     not going to characterize it one way or the other.

  So a nominee to the highest Court in the land and a former dean of 
one of the Nation's most prestigious law schools insists that she 
doesn't know what the term ``legal progressive'' means.
  But later in the hearing, Senator Graham mentioned that Greg Craig, 
President Obama's first White House Counsel, had praised Ms. Kagan. Mr. 
Craig said:

       [Elena Kagan] is largely a progressive in the mold of Obama 
     himself.

  So Senator Graham asked:

       Would you consider them, your political views, progressive?

  Then Ms. Kagan acknowledged that, yes, her ``political views are 
generally progressive.''
  It is hard to believe Ms. Kagan knows what a political progressive is 
but not a legal progressive.
  Exhibit F: Her attempt to redefine her views in the letter sent to 
Judiciary Committee on November 14, 2005, in which she objected to the 
Graham-Kyl-Cornyn amendment dealing with treatment of enemy detainees. 
Her characterization of our approach as being similar to the 
``fundamentally lawless'' actions of ``dictatorships'' was clearly, I 
believe, injudicious and revealed the fervor of her position, much like 
her characterization of the don't ask, don't tell policy as ``a moral 
injustice of the first order,'' and it could suggest a viewpoint that 
she would have a hard time laying aside if similar questions ever came 
before her as a Supreme Court Justice.
  Her attempt to distance herself from the obvious application of her 
views to places other than Gitmo--obvious because her letter bemoaned 
the ``serious and disturbing reports of the abuse of prisoners in 
Guantanamo, Iraq and Afghanistan''--and issues other than conviction 
and sentencing--even though her letter stated that our amendment 
``unfortunately'' would ``prohibit challenges to detention practices, 
treatment of prisoners, adjudications of their guilt and their 
punishment''--suggests either that she was uncomfortable defending her 
position or she wanted to preserve her right to sit on such cases in 
the future or both. The attempt to obscure positions she had previously 
stated was, I believe, an attempt to run away from those positions and 
mislead the committee.
  Exhibit G: Ms. Kagan's doublespeak on the question of same-sex 
marriage. Prior to her confirmation as Solicitor General, when she was 
not restricted, as judicial nominees are, in her ability to comment on 
issues that may come before the courts, Senator Cornyn asked Ms. Kagan 
a direct question about her personal views:

       Do you believe that there is a fundamental constitutional 
     right to same-sex marriage?

  Her answer then seemed clear. She wrote:

       There is no Federal constitutional right to same-sex 
     marriage.

  But at the hearing, when I asked Ms. Kagan to confirm her views on 
this subject, she distorted both Senator Cornyn's question and her 
answer. She told me Senator Cornyn had asked whether she could 
``perform the role of the Solicitor General'' and vigorously defend 
DOMA, given her opposition to don't ask, don't tell. When I pointed out 
that Senator Cornyn's question was about a constitutional right to 
same-sex marriage, not DOMA, Ms. Kagan then asserted that her answer to 
Senator Cornyn--that ``there is no Federal constitutional right to 
same-sex marriage''--intended to convey that she ``understood the state 
of the law and accepted the state of the law.'' Having reinterpreted 
her previous answer, she then told me that, as a Supreme Court nominee, 
it would not be ``appropriate'' for her to share her personal views on 
the subject, since such a case may come before the Court.
  It strikes me that Ms. Kagan was, at the time of her nomination to be 
Solicitor General, trying to create an impression--apparently a false 
one--that she did not personally believe the Constitution could be read 
to include a right to same-sex marriage.
  That leads to Exhibit H: her involvement, while serving as Solicitor 
General, in a case concerning the constitutionality of the Defense of 
Marriage Act, DOMA.
  When nominated for the job of Solicitor General, Ms. Kagan emphasized 
in her opening statement the ``critical responsibilities'' that the 
Solicitor General owes to Congress, ``most notably the vigorous defense 
of the statutes of this country against constitutional attack.'' Later, 
Ms. Kagan reiterated that she could represent the interests of the 
United States ``with vigor, even when they conflict with my own 
opinions. I believe deeply that specific roles carry with them specific 
responsibilities and that the ethical performance of a role demands 
carrying out these responsibilities as well and completely as 
possible.''
  Ms. Kagan even cited former Solicitor General Ted Olson's defense of 
the campaign finance laws as an example of the way a Solicitor General 
should approach the job. She said, ``I know that Ted Olson would not 
have voted for the McCain-Feingold bill, but he . . . did an 
extraordinary job of defending that piece of legislation. . . . And 
that's what a solicitor general does.''
  Yet, there is substantial reason to doubt that Ms. Kagan genuinely 
carried out her obligation to ``vigorously defend'' a Federal statute 
in district court, the Defense of Marriage Act. In response to 
questions at her Supreme Court hearing, Ms. Kagan acknowledged that she 
was involved in two district court cases involving DOMA. Her personal 
involvement in these cases was itself unusual as she admitted in 
response to written questions: ``In the normal course, the [Solicitor 
General's] Office does not participate in district court litigation.''
  Her involvement would not have necessarily raised concerns were it 
not for the position that the government advocated in the cases. In the 
first case, Smelt v. United States, the Department of Justice filed a 
brief that, as part of its so-called ``defense'' of the DOMA statute, 
admitted to the court that ``this Administration does not support DOMA 
as/matter of policy, believes that it is discriminatory, and supports 
its repeal.'' How can a lawyer mount a ``vigorous'' defense of a 
statute while declaring the statute to be discriminatory? But it gets 
worse. The Justice Department's brief also asked the court to ignore 
one of the strongest arguments in support of DOMA--namely that 
traditional marriage serves as a valuable vehicle for encouraging 
responsible procreation and childbearing. The brief asserted that the 
government ``does not believe that DOMA is rationally related to any 
legitimate government interests in procreation and child-rearing.''
  It is clear that the Justice Department's brief, which was supposed 
to be filed in support of the DOMA statute, in fact undercut the law's 
constitutionality. As one legal scholar and proponent of same-sex 
marriage said about the Justice Department's argument:

       This new position is a gift to the gay-marriage movement, 
     since it was not necessary to support the government's 
     position. It will be cited by litigants in state and federal 
     litigation, and will no doubt make its way into judicial 
     opinions. Indeed, some state court decisions have relied very 
     heavily on procreation and child-rearing rationales to reject 
     SSM [same-sex marriage] claims. The DOJ is helping knock out 
     a leg from under the opposition to gay marriage.

  The Smelt case was later dismissed by the district court for other 
reasons. And that brings us to the second DOMA case in which Ms. Kagan 
was involved--Gill v. Office of Personnel

[[Page 15018]]

Management. In Gill, the Justice Department again offered the same 
half-hearted defense of DOMA and repudiated its strongest legal 
arguments. This time, however, the district court seized on the Justice 
Department's rejection of the procreation and child-bearing rationales 
and found that DOMA was unconstitutional. Ed Whelan, the noted legal 
commentator and a former principal deputy of the Office of Legal 
Counsel, has explained that the decision in Gill ``would be ridiculous 
but for DOJ's abandonment of Congress's stated justifications for DOMA. 
Under proper application of the very deferential `rational basis' 
review, for example, it would be enough to recognize that it would have 
been reasonable for Congress in 1996 to regard traditional marriage as 
a valuable vehicle for encouraging responsible procreation and 
childbearing.''
  Although Ms. Kagan admitted being involved in both Smelt and Gill, 
she refused to tell us her role in the deliberations. In response to 
written questions, Ms. Kagan did admit that her participation in Smelt 
was ``sufficiently substantial'' that she would recuse herself should 
the case come before the Supreme Court. But this promise itself was 
disingenuous because the Smelt case had already been dismissed, so 
there was no chance that it would come before the Supreme Court. On the 
other hand, the Gill case may very well make its way to the Supreme 
Court, but Ms. Kagan did not promise to recuse herself from 
participating in it, despite her involvement in formulating the Justice 
Department's flawed defense of DOMA in the case.
  We will likely never know what Ms. Kagan's advice was in these cases. 
What we do know is that Ms. Kagan has a history of ignoring the law 
when it conflicts with the gay rights agenda. We also know that she 
took the unusual step of getting involved in these district court cases 
challenging DOMA. And we know that the Justice Department went out of 
its way to abandon one of the fundamental rationales for the DOMA 
statute, which resulted in a court, for the first time ever, ruling 
that DOMA was unconstitutional. On the basis of these facts, I believe 
that any reasonable observer would question whether Ms. Kagan kept her 
promise to us that she would ``vigorously defend'' Federal statute as 
Solicitor General.
  Exhibit I is her dubious explanation of why, in another case that she 
handled as Solicitor General, she declined to appeal the Ninth 
Circuit's adverse ruling in Witt v. Department of the Air Force, a case 
challenging the constitutionality of the government's don't ask, don't 
tell statute. At her hearing, Ms. Kagan claimed that allowing the Ninth 
Circuit decision to stand, and accepting a remand and trial in district 
court, would provide the Supreme Court with a ``fuller record'' and 
would help the government ``show what the Ninth Circuit was demanding 
that the government do'' to defend don't ask, don't tell.
  But a review of the Ninth Circuit opinion and the record in the case 
shows that Ms. Kagan's explanation was disingenuous. The Ninth Circuit 
itself had already said what the government would need to prove for the 
Federal law to survive--there was no need to develop a ``fuller 
record'' or seek further clarification from the courts.
  Ms. Kagan's decision to let the case return to the district court 
ensured that members of the military would be subjected to invasive and 
humiliating trials in the Witt case and in all other challenges against 
don't ask, don't tell--trials in which soldiers would be compelled to 
testify against their comrades, discuss their views of a fellow 
soldier's sexual practices, and watch as the unit's personnel files 
become fodder for lawyers trying to condemn what is supposed to be a 
military-wide policy. The government rightly argued before the trial 
court that such trials are guaranteed to destroy unit cohesion--the 
very thing that Congress sought to protect when it passed the don't 
ask, don't tell statute. And the trial court records show that Kagan 
knew in advance that the trial process would harm the military's 
interests. But she decided to thrust the government into exactly the 
position the military's lawyers most wanted to avoid, perhaps to keep 
in place, and insulate from Supreme Court review, a Ninth Circuit 
ruling that places don't ask, don't tell policy in jeopardy.
  In addition to my concerns that Ms. Kagan was less than candid with 
the Judiciary Committee, I am also concerned about her leftist ideology 
and the potential it will influence her judging. I will discuss three 
areas of concern.
  First, is her defense of the brief filed in Chamber of Commerce v. 
Candelaria. It takes a clever lawyer to argue that the Court should 
take this immigration case, but not Lopez-Rodriguez v. Holder on the 
traditional reasons for granting certiorari. In Candelaria, she asked 
the Supreme Court to strike down an Arizona law that permits the State 
to suspend or revoke the business licenses of companies that knowingly 
employ illegal aliens. She did this even though Federal law expressly 
authorizes States to enforce immigration laws ``through licensing'' and 
even though the courts that have considered the issue have determined 
that States could do precisely what Arizona did. Yet, in Lopez-
Rodriguez, another immigration case, she refused to appeal a decision 
by the Ninth Circuit that permits ordinary deportation hearings to be 
bogged down by long legal fights over the admissibility of clear 
evidence that a person is illegally here. Unlike Candelaria, the Ninth 
Circuit's decision in Lopez-Rodriguez was in conflict with the 
decisions of other courts--including the Supreme Court--involved a 
significant constitutional issue. It is difficult not to conclude that 
Ms. Kagan's actions in these two cases were driven less by the law, and 
more by political expediency.
  My second concern about ideology is that Ms. Kagan has shown she may 
hold a limited reading of the second amendment, even after the Heller 
and McDonald cases. When asked whether the right to bear arms was a 
``fundamental right,'' Ms. Kagan said, ``I think that that's what the 
court held in McDonald.'' She also said that the holding was ``[g]ood 
precedent going forward.'' Of course, there is a record of nominees 
describing the holding of a case and proclaiming that it is ``good 
precedent,'' only to vote to overturn or distinguish that precedent 
once they ascend to the bench. Justice Sotomayor did just that on this 
issue.
  But we need not rely on cynicism to demonstrate that Ms. Kagan may 
not view the recent second amendment precedents as settling the 
question of whether gun ownership is a ``fundamental right.''
  Generally speaking, when a constitutional right is ``fundamental,'' 
any government restriction of that right is subject to ``strict 
scrutiny'' by the courts. But at her hearing, Ms. Kagan left open the 
possibility that some other, lesser standard of scrutiny should apply 
to second amendment restrictions. She said that ``going forward the 
Supreme Court will need to decide what level of constitutional scrutiny 
to apply to gun regulations.'' This does not sound like a commitment to 
the principle that the second amendment guarantees a fundamental right. 
When weighed with her well-documented work in the Clinton 
administration to advance gun control legislation, I believe there is a 
justifiable concern that Ms. Kagan would vote to construe Heller and 
McDonald as narrowly as possible.
  Third, I am concerned that Ms. Kagan sees few, if any, limitations on 
Congress's authority to regulate behavior, or interstate commerce. In a 
remarkable exchange, Senator Coburn asked Ms. Kagan whether it would be 
constitutional for Congress to pass a law requiring Americans ``to eat 
three vegetables and three fruits every day.'' Although Ms. Kagan said 
that such a law sounded ``dumb,'' she refused to say that such a law 
would be unconstitutional. In fact, during the course of the exchange, 
Ms. Kagan repeatedly emphasized that a court analyzing such a statute 
should ``read the [commerce] clause broadly'' and give ``real 
deference'' to Congress.

[[Page 15019]]

  I agree that the commerce clause gives the Congress substantial 
authority, but it does not give Congress unlimited authority. That Ms. 
Kagan was unwilling to say a law requiring the consumption of produce 
is beyond Congress's authority suggests she would vote to uphold 
statutes that exceed the boundaries of the commerce clause. Stretching 
the commerce clause gives too much power to Congress.
  Finally, it is worth noting that Ms. Kagan came to the Senate with a 
lack of legal and judicial experience, especially when compared to 
other recent nominees. Some have reached back 40 years to compare Ms. 
Kagan's experience to that of Chief Justice Rehnquist, the last nominee 
without prior judicial experience confirmed to the Supreme Court in 
1972. William Rehnquist, however, spent 16 years as a practicing 
litigator in my home State of Arizona and 2 more years as Assistant 
Attorney General, Office of Legal Counsel, a position that was later 
held Justice Scalia 1974-1977 and that, according to the Department of 
Justice, ``typically deal[s] with legal issues of particular 
complexity'' and ``provides authoritative legal advice to the President 
and all the executive branch agencies.'' In contrast, Ms. Kagan's law 
practice is confined to two years in private practice shortly after law 
school and 1 year as the Solicitor General.
  Her limited experience is not by itself disqualifying, but it did 
increase the importance of her hearing. Had she answered questions in 
an honest and straightforward manner, we might have a better basis to 
know what kind of judge she would be. But instead, Ms. Kagan either 
dodged questions or gave what were clearly disingenuous answers 
intended to mask her views. She also failed to make the case that her 
political ideology would not influence her judging. For all of the 
reasons I have discussed, I cannot support her nomination.
  The PRESIDING OFFICER. The Senator from Oklahoma is recognized.
  Mr. INHOFE. Mr. President, I certainly could not improve upon the 
statements and arguments that have been made by my good friend from 
Arizona. I come from a little different perspective. There are six 
things I think any one of which would seriously make us consider voting 
against her.
  I want to say this, first, though. Back when she was first nominated 
I was the first one to say I was opposed to her. The main reason was 
these things came up, most of them, when she was up to be confirmed for 
Solicitor General. At that time I objected to her being in that 
position.
  I have a policy--I think it is good; people in Oklahoma know it--and 
that is, if you oppose someone's confirmation for a position and then 
they come back later for a higher position, it is automatic because the 
bar should be higher.
  Anyway, today I want to reemphasize a couple of things that were 
mentioned by my friend from Arizona. One objection to the Kagan 
nomination is that she undeniably lacks the experience.
  I think Senator Kyl said it very well. People say there have been 
others in history that didn't have any judicial experience, but in 
those cases, they averaged 21 years of practicing law. They had that 
experience. This would be the first time in history we have someone 
with less than 2 years' experience and no judicial experience. That 
would be reason enough, but that is not my major objection.
  My major objection is her disdain for the U.S. military. While dean 
at Harvard, Kagan banned the military during a time of war from 
recruiting on campus due to her objection over the don't ask, don't 
tell policy. That was the policy put together during the Clinton 
administration while she was in the administration. She did not object 
to it at that time, but she objects to it now.
  There has been much made by her supporters about her role in this 
incident, but the truth is that in November of 2004, after the Third 
Circuit Court of Appeals struck down the Solomon amendment--I was there 
when the Solomon amendment was passed in the House--Kagan affirmatively 
disallowed the military from recruiting at the school's office of 
career services. Subsequently, she joined 40 other schools in filing an 
amicus brief with the Supreme Court in the case opposing the Solomon 
amendment which was then overwhelmingly opposed and reversed by the 
Supreme Court unanimously. She was taking advantage of that opportunity 
when she didn't allow recruiters at the university. We have seen this 
happen around the country, not only Harvard but in California. This is 
something that is definitely in opposition to the law that is still in 
place, referred to as the Solomon amendment.
  Equally alarming to these actions is her misrepresentation of the 
facts before the Judiciary Committee. I wasn't aware of this, certainly 
not back when she was up for Solicitor General. She testified that 
military recruiters had ``full and good access'' to Harvard's campus. 
Military recruiters clearly did not have full and good access, as they 
had to work through the school's veterans group as opposed to being 
allowed to go through the office of career services, a part of the 
university.
  Internal Pentagon documents reveal that under her deanship ``The Army 
was stonewalled at Harvard.'' Furthermore, Kagan told the committee 
that in banning recruiters she ``always thought we were acting in 
compliance'' with Federal law. Yet in her own e-mail to Harvard 
students and faculty, she wrote that she had ``hope'' that the 
government ``would choose not to enforce'' the law.
  I am alarmed that Kagan would not only ban military recruiters on 
campus in a time of war but that she would do it to advance her own 
liberal and social agenda, then mislead the committee with her 
statements.
  During her tenure as dean of Harvard, Kagan sent a letter with three 
other law school deans to the Senate in 2005 opposing legislation that 
sought to prevent terrorists convicted in military tribunals from 
appealing their convictions in Federal courts. She compared this 
legislation to the ``fundamentally flawless'' actions of a 
``dictatorship'' that has ``passed laws stripping courts of power to 
review executive detention or punishment of prisoners.'' That is not 
what I said. That is what Ms. Kagan said.
  We have the best judicial system in the world. Equating our laws 
relating to the war on terror to that of a dictatorship would be 
laughable, were it not so pervasive in liberal academia.
  Kagan has a history of misrepresenting facts to push her liberal 
agenda, including her efforts while working in the Clinton 
administration to change statements of two medical associations to 
withhold the truth about partial-birth abortion. This is interesting. 
Both groups had a firm position, and she influenced a change in that 
position. During the debate over the Partial Birth Abortion Ban Act, 
Kagan wrote a memo to President Clinton in December 1996 objecting to 
the release of the American College of Obstetricians and 
Gynecologists--ACOG--proposed statement that partial-birth abortion is 
never medically necessary. This is what their position was. They came 
out and said that it was never necessary.
  ``The release of the statement would, of course, be a disaster.'' 
Those are her words, talking at that time to the Clinton 
administration. We have evidence from Kagan's handwritten notes that 
she advocated a change in the statement to reflect that partial-birth 
abortion may be medically necessary. One month later, ACOG released a 
statement with language nearly identical to Kagan's language that such 
abortions may be medically necessary to save the life and preserve the 
health of the mother. In addition to seeking to change ACOG's position, 
Kagan also sought to alter the American Medical Association position on 
partial-birth abortion. She once again tried to alter the facts and 
encourage AMA to change its medical policy on partial-birth abortion.
  What is perhaps more concerning about Kagan's efforts to manipulate 
the medical policy of ACOG and AMA is that these medical policy 
statements were then used, sometimes successfully, in Federal courts to 
invalidate

[[Page 15020]]

State laws and the Partial Birth Abortion Ban Act. She manipulated 
medical facts to advance a barbaric practice and push a political 
agenda.
  We are talking about two highly respected medical associations that 
said partial-birth abortion was not something that was necessary, 
changing their positions. Then that was later used in court cases. 
Moreover, Kagan criticized the Supreme Court decision of Rust v. 
Sullivan which upheld the Department of Health and Human Services 
regulations prohibiting title X family planning funds from being 
directed toward programs where abortion is a method of family planning.
  Additionally, while clerking for Justice Marshall, she authored a 
memo arguing that all religious organizations should be off limits from 
receiving Federal funds for programs authorized by the Adolescent 
Family Life Act such as pregnancy testing, prenatal/postnatal care, 
adoption counseling, and childcare, because these programs are so close 
to the central concerns of religion.
  I also seriously question Kagan's willingness to honor and defend the 
second amendment, getting into an area that is probably more sensitive 
to a lot of my friends, including my son and members of the family, who 
are active and strong believers in second amendment rights. While 
clerking for Justice Marshall, Kagan wrote a memo about a case 
challenging Washington, DC's strict gun control laws. In only four 
sentences she was dismissive of the case, writing that she was ``not 
sympathetic'' to an individual-rights view of the second amendment. As 
everyone knows, the Supreme Court has since upheld the individual right 
to keep and bear arms. Kagan also used her position with the Clinton 
administration to advocate various anti-second amendment initiatives. 
Documents from the Clinton library illustrate that she supported 
background checks for secondary market gun purchases as well as 
municipal liability suits against gun manufacturers.
  She helped develop an executive order banning the importation of 
certain types of semiautomatic weapons that were not covered by the 
1994 assaults weapons ban. She also sought to permit law enforcement to 
retain Brady background checks information on lawful gun sales.
  Finally, in an internal document regarding the Volunteer Protection 
Act, she described the NRA as ``a bad guy organization.''
  She might get by with that in this Chamber, but she wouldn't get by 
with it in Oklahoma. We read the Constitution. We know what it says. 
She has no respect for the second amendment.
  I am also gravely concerned, based on Kagan's writings and 
statements, that she would be a judicial activist who would seek to 
legislate from the bench. In her 1998 masters thesis at Oxford she 
wrote:

       As participants in American life, judges will have 
     opinions, prejudices, and values. Perhaps more important, 
     judges will have goals. And because this is so, judges will 
     often try to mold and steer the law in order to promote 
     certain ethical values and achieve social ends. Such activity 
     is not necessarily wrong or invalid.

  She is stating, not just from today but going all the way back to her 
Oxford days, that judicial activism is appropriate. Rather than affirm 
the role of judges as the faithful interpreters of the law, Kagan 
voiced her support for judges who seek to serve as legislators, who 
develop their own empathy standards and apply the law in a matter they 
personally see fit. Her self-acknowledged judicial hero, Aharon Barak, 
perfectly fits this mold. In her testimony before the committee, she 
even affirmed that she would consider foreign law when she decides 
cases. She said:

       I guess I'm in favor of good ideas from wherever they come.

  We are talking about referring to other countries that have a 
different judicial system and saying maybe they are right and maybe we 
are wrong. I simply cannot support a nominee who looks to other 
judicial systems or judicial philosophies or evolving standards of 
decency rather than the text of the Constitution to interpret law.
  I have thoroughly reviewed the record of Elena Kagan and have come to 
the firm conclusion that she lacks the qualification and experience to 
be a Supreme Court Justice.
  I have named six things. Any one of these six should be 
disqualifying. One is, she wants to consider foreign judiciaries. Two, 
she has no judicial or trial experience. Third, she is a judicial 
activist. Four, she is extreme in her philosophy on abortion and anti-
second amendment views, and she is antimilitary.
  I think of all the things I have mentioned, probably the part that 
concerns me most is her position that if we are trying someone in a 
military trial, maybe a terrorist or an activist, that they would be 
given the right to appeal to our court system and inherit all the 
benefits any citizen of the United States has.
  I can only say what I said several months ago when she was first 
nominated. In my opinion, as 1 of 100 Senators, if she is not qualified 
to be Solicitor General, she is certainly not qualified for the higher 
job of Justice of the U.S. Supreme Court.


                          Hydraulic Fracturing

  I also wish to discuss one of the problems that is going to come up 
tomorrow, and that is with the Democratic and Republican energy bills. 
I am very concerned about a process that has been successful in 
extracting oil and primarily gas out of tight formations, known as 
hydraulic fracturing. Hydraulic fracturing started in Oklahoma in 1949. 
We have used hydraulic fracturing to get at these tight formations for 
60 years, and there has never been one case of any kind of 
contamination of water.
  There are people who want to do away with our ability to run this 
machine called America. They don't want oil, gas, coal, or nuclear. 
That kind of gives an idea of what might be behind this.
  Some say: No, we are not against hydraulic fracturing. This bill 
merely says we want the Federal Government to know what chemicals are 
used.
  This is already being done on a State-by-State basis. Things aren't 
the same in Oklahoma as they are in New York. In Oklahoma, we have very 
strict rules. They know exactly what chemicals are used. By the way, 99 
percent of what is used on these formations is water and sand.
  I am looking forward to talking in more detail with my good friend 
Senator Casey. He is kind of the author of this portion of the bill. 
Yet his State of Pennsylvania has huge opportunities for natural gas. I 
think we need to talk about that. We have enough natural gas that if we 
would take away all the inhibitions we have and keep hydraulic 
fracturing as a process to be used, we could run the country for 100 
years. I think it is our job to make sure we protect that.

                          ____________________