[Congressional Record (Bound Edition), Volume 156 (2010), Part 11]
[Senate]
[Pages 15075-15082]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

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

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume executive session to hear the Kagan nomination.
  The Senator from Iowa.
  Mr. GRASSLEY. I thank the Senator from Rhode Island. He is always 
very courteous to me.
  Mr. President, I rise to take a few minutes to discuss the reasons 
why I am voting against Elena Kagan to be Associate Justice. An 
appointment to the Supreme Court is one of the most important positions 
an individual can hold under our Constitution. It is a lifetime 
position on the highest Court of the land. I take very seriously my 
constitutional role of advice and consent. The Senate's job is not only 
to provide advice and consent by confirming nominees who are 
intelligent and accomplished. Our job is to confirm nominees who will 
be fair and impartial judges, individuals who truly understand the 
proper role of a Justice in our system of government. Our job, then, is 
to confirm nominees who will faithfully interpret the law and the 
Constitution without personal bias or prejudice.
  When the Senate makes its determination, we must carefully assess the 
nominee's legal experiences, record of impartiality, and commitment to 
the Constitution and rule of law. We need to assess whether the nominee 
will be able to exercise what we call judicial restraint. We have to 
determine if the nominee can resist the siren call to overstep his or 
her bounds and encroach upon the duties of the legislative and 
executive branches. Fundamental to the U.S. Constitution are the 
concepts of these checks and balances and the principle of separation 
of powers. The preservation of our individual freedoms actually depends 
on restricting the role of policymaking to legislatures rather than 
allowing unelected judges with lifetime appointments to craft law and 
social policy from the judicial bench. The Constitution constrains the 
judiciary as much as it constrains the legislative branch and the 
executive branch under the President.
  When President Obama spoke about the criteria by which he would 
select his judicial nominees, he placed a very high premium on a 
judge's ability to have, in his words, ``empathy when deciding the hard 
cases.'' This empathy standard glorifies the use of a judge's heart and 
broader vision of what America should be in the judicial process. He 
said that individuals he would nominate to the Federal judiciary would 
have ``a keen understanding of how the law affects the daily lives of 
American people.'' So when President Obama nominated Elena Kagan to the 
Supreme Court, we have to assume he believed she met his ``empathy'' 
standard.
  This empathy standard is a radical departure from our American 
tradition of blind, impartial justice. That is because empathy 
necessarily connotes a standard of partiality. A judge's impartiality 
is absolutely critical to his or her duty as an officer of an 
independent judiciary, so much so that it is actually mentioned three 
times in the oath of office that judges take.
  Empathetic judges who choose to embrace their personal biases cannot 
uphold their sworn oath under our Constitution. Rather, judges must 
reject that standard and decide cases before them as the Constitution 
and the law requires, even if it compels a result that is at odds with 
their own political or ideological beliefs.
  Justice is not an automatic or a mechanical process. Yet it should 
not be a process that permits inconsistent outcomes determined by a 
judge's personal predilections rather than from the Constitution and 
the law. An empathy standard set by the President that encourages a 
judge to pick winners and losers based on that judge's personal or 
political beliefs is contrary to the American tradition of justice.
  That is why we should be very cautious in deferring to President 
Obama's choices for the judicial branch. He set that standard; we did 
not. We should carefully evaluate these nominees' ability to be 
faithful to the Constitution. Nominees should not pledge allegiance to 
the goals of a particular political party or outside interest groups

[[Page 15076]]

that hope to implement their political and social agendas from the 
bench rather than getting it done through the legislative branch.
  When she was nominated to the Supreme Court, meaning Ms. Elena Kagan, 
Vice President Biden's Chief of Staff, Ron Klain, assured the leftwing 
groups that they had nothing to worry about in Elena Kagan because she 
is, in his words, ``clearly a legal progressive.'' So it is pretty safe 
to say that President Obama was true to his promise to pick an 
individual who likely would rule in accordance with these groups' 
wishes. A Justice should not be a member of someone's team working to 
achieve a preferred policy result on the Supreme Court. The only team a 
Justice of the Supreme Court should be on is the team of the 
Constitution and the law.
  I have said on prior occasions that I do not believe judicial 
experience is an absolute prerequisite for serving as a judge. There 
have been dozens of people, maybe close to 40, who have been appointed 
to the Supreme Court who have not had that experience. Solicitor 
General Kagan, however, has no judicial experience and has very limited 
experience as a practicing attorney.
  Unlike with a judge or even a practicing lawyer, we do not have any 
concrete examples of her judicial method in action. Thus, the Senate's 
job of advice and consent is much more difficult. We do not have any 
clear substantive evidence to demonstrate Solicitor General Kagan's 
ability to transition from a legal academic and political operative to 
a fair and impartial jurist.
  Solicitor General Kagan's record and her Judiciary Committee 
testimony failed to persuade me that she would be capable of making 
this crucial transformation. Her experience has primarily been in 
politics and academia. As has been pointed out, working in politics 
does not disqualify an individual from being a Justice. However, what 
does disqualify an individual is an inability to put politics aside in 
order to rule based upon the Constitution and the law. In my opinion, 
General Kagan did not demonstrate that she could do that during her 
committee testimony. Moreover, throughout her hearings, she refused to 
provide us with details on her views on constitutional issues.
  It was very unfortunate we were unable to elicit forthcoming answers 
to many of our questions in an attempt to assess her ability to wear 
the judicial robe. She was not forthright in discussing her views on 
basic principles of constitutional law, her opinions of important 
Supreme Court cases or personal beliefs on a number of legal issues. 
This was extremely disappointing.
  Candid answers to our questions were essential for us as Senators to 
be able to ascertain whether she possesses the proper judicial 
philosophy for the Supreme Court. In fact, her unwillingness to 
directly answer questions about her judicial philosophy indicated a 
political approach throughout the hearing. I was left with no evidence 
that General Kagan would not advance her own political ideas if she is 
confirmed to the Federal bench.
  General Kagan's refusal to engage in meaningful discussion with us 
was particularly disappointing because of her position in a 1995 Law 
Review Article entitled ``Confirmation Messes, Old and New.'' In that 
article she wrote--and she was then Chicago Law Professor Kagan--that 
it was imperative that the Senate ask about, and the Supreme Court 
nominees discuss, their judicial philosophy and substantive views on 
issues of constitutional law. Specifically, then-Professor Kagan wrote:

       When the Senate ceases to engage nominees in meaningful 
     discussion of legal issues, the confirmation process takes on 
     an air of vacuity and farce, and the Senate becomes incapable 
     of either properly evaluating nominees or appropriately 
     educating the public.

  That is in Professor Kagan's own words.
  Bottom line, General Kagan did not live up to her own standard. She 
was nonresponsive to many of our questions. She backed away from prior 
positions and statements. She refused to discuss the judicial 
philosophy of sitting judges.
  When asked about her opinions on constitutional issues or Supreme 
Court decisions, she either declined to answer or engaged in an 
overview of the status of the law rather than a discussion of her own 
personal views. Because of her shallow record on the issues, this 
approach to the hearing was extremely troubling.
  At her confirmation hearing, General Kagan told us to ``look to [her] 
whole life for indications of what kind of judge or Justice [she] would 
be.'' Well, General Kagan's record has not been a model of 
impartiality, as we looked at her record and her life just as she asked 
us to. There is no question that throughout her career she has shown a 
strong commitment to far-left ideological beliefs. Solicitor General 
Kagan's upbringing steeped her in deeply held liberal principles that 
at one point she stated she had ``retained . . . fairly intact to this 
date.'' Her jobs have generally never required her to put aside her 
political beliefs, and she has never seen fit to do so. Her first 
instinct and the instincts she has relied upon throughout her career 
are her liberal, progressive political instincts put to work for 
liberal, progressive political goals. I have no evidence that if 
Solicitor General Kagan were confirmed to the Supreme Court she would 
change her political ways or check her political instincts or goals at 
the courthouse door.
  In fact, General Kagan gained her legal expertise by working in 
politics. She started out by working on Congresswoman Liz Holtzman's 
Senate campaign, hoping for, in her words, a ``more leftist left.'' She 
also worked as a volunteer in Michael Dukakis's Presidential run. The 
Dukakis campaign wisely put her to work at a task that is political to 
the core--opposition research. There she found a place where she was 
encouraged to use her political savvy and make decisions based upon her 
liberal, progressive ideology.
  Moreover, while clerking for Justice Marshall, General Kagan's 
liberal personal convictions--rather than the Constitution and the 
law--seemed to be her ultimate guide when analyzing cases. General 
Kagan consistently relied on her political instincts when advising 
Justice Marshall, channeling and ultimately completely embracing his 
philosophy of ``do[ing] what you think is right and let[ting] the law 
catch up.'' Her Marshall memos clearly indicate a liberal and outcome-
based approach to her legal analysis.
  In several of her memos, it is apparent she had a difficult time 
separating her deeply held liberal views and political beliefs from the 
law. For example, in one case she advised Justice Marshall to deny 
certiorari because the Court might make ``some very bad law on 
abortion.'' In another case, she was ``not sympathetic'' that an 
individual's constitutional right to keep and bear arms had been 
violated. In essence, her judicial philosophy was a very political one.
  During her tenure at the White House, Solicitor General Kagan worked 
on a number of highly controversial issues, such as abortion, gun 
rights, campaign finance reform, and the Whitewater and Paula Jones 
scandals. She herself described her work for President Clinton as being 
primarily political in nature.
  In a 2007 speech, she said:

       During most of the time I spent at the White House, I did 
     not serve as an attorney, I was instead a policy adviser. . . 
     . It was part of my job not to give legal advice, but to 
     choose when and how to ask for it.

  Her documents from the Clinton Library prove just that. She 
forcefully promoted far-left positions and offered analyses and 
recommendations that were far more political than legal in nature. For 
example, during the Clinton administration, General Kagan was 
instrumental in leading the fight to keep partial-birth abortion on the 
books. Documents show that she boldly inserted her own political 
beliefs in the place of science. Specifically, she redrafted language 
for a nonpartisan medical group to override scientific findings against 
partial-birth abortion in favor of her own extreme views. Despite the 
lack of scientific studies showing that partial-birth abortion was 
never necessary and her own

[[Page 15077]]

knowledge that ``there aren't many [cases] where use of the partial-
birth abortion is the least risky, let alone the `necessary,' 
approach,'' Solicitor General Kagan had no problem intervening with the 
American College of Obstetricians and Gynecologists to change their own 
policy statement.
  After her intervention, this doctor group's statement no longer 
accurately reflected the medically supported position of the 
obstetricians and gynecologists. Rather, the group's statement now said 
that partial-birth abortions should be available if the procedure might 
affect the mother's physical, emotional or psychological well-being. 
The reality is that General Kagan's change was not a mere 
clarification. It was, in fact, a complete reversal of the medical 
community's original statement.
  Other documents show that Solicitor General Kagan also lobbied the 
American Medical Association to change a statement it had issued on 
partial-birth abortion. These documents demonstrated her ``willingness 
to manipulate medical science to fit the Democratic Party's political 
agenda on a hot button issue of abortion.''
  During her hearing, General Kagan refused to admit she participated 
in the decisionmaking process of what language the gynecologists would 
use in their statement on partial-birth abortion. The documents present 
a very different picture. Although she stated that there was ``no way 
she could have intervened with the ACOG,'' she did exactly that. 
Instead of responding to a legitimate inquiry in an open and honest 
manner, she deflected the question and gave, at best, nonresponsive 
answers.
  In addition, Solicitor General Kagan worked on a number of 
initiatives to undermine second amendment rights. She was front and 
center of the Clinton administration's anti-second amendment agenda. 
She collaborated closely with Jose Cerda on the administration's plan 
to ban guns by ``taking the law and bending it as far as we can to 
capture a whole new class of guns.'' After the Supreme Court in Printz 
v. U.S. found parts of the Brady antigun law to be unconstitutional, 
she endeavored to find legislative and executive branch responses to 
deny citizens' second amendment rights.
  Even in academia, Solicitor General Kagan took steps and positions 
that were based on her strongly held personal beliefs rather than an 
evenhanded reading of the law. As dean of Harvard Law School, she 
actively defied Federal law by banning military recruiters from campus 
while the Nation was at war. Prior to her appointment as dean, the 
Department of Defense had made clear to Harvard that the school's 
previous recruitment policy was not in compliance with the Solomon 
Amendment, so Harvard did what Harvard should have done: changed its 
policy to abide by the Federal law. But when the Third Circuit, which 
does not include Massachusetts, ruled on the issue, then-Dean Kagan 
immediately reinstituted the policy barring the military from the 
Harvard campus. She took this position because she personally believed 
the military's longstanding policy of don't ask, don't tell, in her 
words, was ``a profound wrong--a moral injustice of the first order.'' 
She claimed her policy was equal treatment. However, the Air Force 
believed the policy was playing games with its ability to recruit. The 
Army believed the policy resulted in it being stonewalled. Then-Dean 
Kagan was entitled to her opinion, but--no different than anybody else 
in this country--she was not free to ignore the law. The Solomon 
Amendment required that military recruiters be allowed equal access to 
the university as any other recruiter.
  The bottom line is that then-Dean Kagan refused to follow the law and 
instead interpreted that law in accordance with her personal beliefs. 
The Supreme Court unanimously rejected her legal position on the 
Solomon Amendment and upheld our military.
  I am concerned that Solicitor General Kagan will continue to use her 
personal politics and ideology to drive her legal philosophy if she is 
confirmed to the Supreme Court, particularly since her record shows she 
has worked to bend the law to fit her political wishes.
  Further, I am concerned with the praise Solicitor General Kagan has 
lavished on liberal jurors who promote activist philosophies such as 
those of Israeli Judge Aharon Barak. Judge Barak is a major proponent 
of judicial activism who believes judges should ``bridge the gap 
between law and society.'' He also went on to say that we ought to use 
international law to advance a social and political agenda on the 
bench.
  At a Harvard law event attended by then-Dean Kagan, Judge Barak noted 
with approval cases in which ``a judge carries out his role properly by 
ignoring the prevalent social consensus and becoming a flag bearer of 
new social consensus.'' When I asked General Kagan if she endorsed such 
an activist judicial philosophy, she replied that Judge Barak's 
philosophy was something ``so different from any that we would use or 
want to use in the United States.'' But that contradicts her previous 
statement about Judge Barak that he is a ``great, great judge'' who 
``presided over the development of one of the most principled legal 
systems in the world.'' I am not able to ascertain if Solicitor General 
Kagan agrees with Judge Barak or if she rebukes his positions, so I am 
left to believe she endorses the judicial method of what she calls her 
``judicial hero'' and his views on judicial restraint or lack thereof. 
I cannot support a Supreme Court nominee whose judicial philosophy 
endorses judicial activism as opposed to judicial restraint.
  With respect to the second amendment, General Kagan testified that 
the Heller and McDonald cases were binding precedent for the lower 
courts and due all the respect of precedent. However, I worry that, if 
confirmed, her deeply engrained personal belief will cause her to 
overturn this precedent because she does not personally agree with 
those decisions or the constitutional right to bear arms. At the 
hearing, Solicitor General Kagan was unwilling to discuss her personal 
views on the second amendment or whether she believes the right to bear 
arms is what it is today--a fundamental right. When I asked her about 
her thoughts on the issue, she simply replied that she ``had never 
thought about it before.'' I also asked her whether she believed self-
defense was at the core of the second amendment. She could only 
respond: ``I have never had the occasion to look into the history of 
the matter.'' As a former constitutional law professor both at Chicago 
and Harvard, Solicitor General Kagan's response ought to be troubling 
to anybody who heard it.
  A key theme in the U.S. Constitution reflects the important mandate 
of the Declaration of Independence. It is the recognition that the 
ultimate authority of a legitimate government depends on the consent of 
a free people, the ``consent of the governed.'' As Thomas Jefferson 
wrote:

       We hold these truths to be self-evident, that all men are 
     created equal, that they are endowed by their Creator with 
     certain unalienable Rights, that among these are Life, 
     Liberty, and the pursuit of Happiness. That to secure these 
     rights, Governments are instituted among Men deriving their 
     just powers from the consent of the governed.

  As former Attorney General Edwin Meese explains:

       That all men are created equal means that they are equally 
     endowed with unalienable rights. . . . Fundamental rights 
     exist by nature, prior to government and conventional laws. 
     It is because these individual rights are left unsecured that 
     governments are instituted among men.

  So I am concerned that Elena Kagan refused to agree with my comments 
about the Declaration of Independence--that there are such things as 
inalienable rights and if government does not give, government cannot 
take away.
  Similarly, Senator Coburn asked General Kagan if she agreed with 
William Blackstone's assessment about the right to bear arms and use 
those arms in self-defense. She replied:

       I don't have a view on what are natural rights, independent 
     of the Constitution.

  If you don't have a view about rights that existed before the 
Constitution was ever written, do you have the knowledge to be a 
Supreme Court Justice?

[[Page 15078]]

  So this is concerning to me because, as one commentator stated:

       A legal scholar with no take on such a fundamental 
     constitutional topic [of which individual rights qualify as 
     natural or inalien in character] seems at best disingenuous 
     and at worst, frightening. How can one effectively analyze 
     and apply the Constitution without a firm grip on what basic 
     freedoms underlie our founding documents and national social 
     compact? How can one effectively understand the original 
     intent of the Framers without any opinion on the essential 
     place of certain liberties within the American legal 
     framework?

  Bottom line: The fact that General Kagan refused to answer our 
questions about her personal opinions on the right to bear arms leads 
me to conclude that she does not believe people have a natural right of 
self-preservation, unrelated to the Constitution.
  I am concerned about Solicitor General Kagan's views on our 
constitutional right to bear arms not only because of her anti-second 
amendment work during the Clinton administration but also in light of 
her memo in the Sandidge case when she clerked for Justice Marshall. In 
her memo, she summarily dismissed the petitioner's contention that the 
District of Columbia's firearm statute violated his second amendment 
right to keep and bear arms. Instead of providing a serious basis for 
her recommendation to deny the certiorari, her entire legal analysis of 
this fundamental right consisted of one sentence: ``I am not 
sympathetic.''
  A further basis for my concerns about whether she will protect or 
undermine the second amendment if she is confirmed is the decision of 
the Office of Solicitor General under her leadership not to even submit 
a brief in the second amendment McDonald case. Solicitor General 
Kagan's record clearly shows she is a supporter of restrictive gun laws 
and has worked on numerous initiatives to undercut second amendment 
fundamental rights. So, not surprisingly, as Solicitor General, she 
could not find a compelling Federal interest for the United States to 
submit a brief in a case that dealt with fundamental rights and the 
second amendment of the Constitution. This was a case that everyone 
knew would have far-reaching effects. It is apparent that political 
calculations and personal beliefs played a role in Solicitor General 
Kagan's decision not to file a brief in this landmark case to ensure 
that constitutional rights of American citizens were protected before 
the Supreme Court.
  With respect to the Constitution's commerce clause, Solicitor General 
Kagan was asked whether she believed there are any limits to the power 
of the Federal Government over the individual rights of American 
citizens.
  Unfortunately, her response didn't assure me that, if confirmed, she 
would ensure that any law Congress creates does not infringe on the 
constitutional rights of our citizens. Specifically, Senator Coburn 
asked her whether she believed a law requiring individuals to eat three 
vegetables and three fruits a day violated the commerce clause. Though 
pressed on this and other lines of questioning on the commerce clause, 
she was unwilling to comment on what would represent appropriate limits 
on Federal power under the Constitution--and probably the commerce 
clause has been used more than any specific power of Congress for 
greater control of the Federal Government over State and local 
governments or over the economy and probably depriving individual 
rights in the process.
  I am not sure Solicitor General Kagan understands that ours--meaning 
our government--is a limited government and that the restraints on the 
Federal Government's power are provided by the Constitution and the 
concept of federalism upon which our Nation is founded. The powers of 
the Federal Government are explicitly enumerated in article I, section 
8 of the Constitution. Further, the 10th amendment provides that the 
powers not expressly given to the Federal Government in the 
Constitution are reserved to the States.
  The Founding Fathers envisioned that our government would be 
constitutionally limited in protecting the fundamental rights of life, 
liberty, and property and that the laws and policies created by the 
government would be subject to the limits established by the 
Constitution. As James Madison wrote in Federalist No. 45, ``The powers 
delegated by the proposed Constitution to the federal government are 
few and defined. Those which are to remain in the State government are 
numerous and indefinite.''
  I am not convinced the Solicitor General appreciates that there are 
express limits the Constitution places on the ability of Congress to 
pass laws. I am not persuaded by her nonanswers to our commerce clause 
questions that she won't be a rubberstamp for unconstitutional laws 
that threaten an individual's personal freedoms.
  With respect to the institution of marriage, I am concerned with 
Solicitor General Kagan's ability to disregard her own personal beliefs 
in order to defend the Defense of Marriage Act. Under her supervision, 
the United States filed a brief stating that ``the Administration does 
not support DOMA as a matter of policy, believes that it is 
discriminatory, and supports its repeal.'' At the hearing, she refused 
to say whether this was an appropriate statement to make considering 
that it is the duty of the Solicitor General to vigorously defend the 
laws of the United States. How are we to believe she will uphold a law 
as a Supreme Court Justice when she disagrees with that law? When she 
was tasked as the government's lawyer to vigorously defend the law, 
clearly she put her personal politics and beliefs first. It is obvious 
that supporting the repeal of a law is not vigorously defending that 
law.
  There are other occasions where General Kagan's personal beliefs 
rather than the law appear to have guided her decisions as Solicitor 
General. For example, with respect to her handling of the lawsuits 
attempting to overturn the don't ask, don't tell policy, she didn't 
file an appeal in the Witt v. Department of the Air Force case to 
uphold the constitutionality of the law, even though there was a split 
in the circuit courts on this issue. I have already discussed Solicitor 
General Kagan's actions at Harvard Law and how she thwarted our 
military's recruitment efforts because of her deeply held views against 
the don't ask, don't tell policy. I cannot imagine that her personal 
opinions on this matter did not play a role in decisionmaking at the 
Solicitor General's Office with respect to the Witt case.
  I am also concerned about Solicitor General Kagan's views on property 
rights. The fifth amendment states that the government ``shall not take 
private property rights for public use without just compensation.'' In 
2004, the Supreme Court took an expansive view of the words ``public 
use'' in Kelo v. City of New London, allowing the government to take 
private property so that it could be transferred to another person 
promoting economic development. At the hearing, Solicitor General Kagan 
refused to comment on whether she believed the Court had correctly 
interpreted the text of the Constitution in the Kelo case. She also did 
not elaborate on any limits to the government's ability to take private 
property. I am concerned that she does not agree that the ruling in 
Kelo undermines citizens' property rights contained in the 
Constitution.
  Solicitor General Kagan's view of the role of international law is 
disturbing. At the hearing, she stated that a Justice could look to 
international law to find ``good ideas'' when interpreting the U.S. 
Constitution and our laws. However, when I pressed her on which 
countries a Justice should look to in order to find those ``good 
ideas,'' she refused to answer.
  I am unaware of how international law can help us better understand 
our great Constitution. That is because international law should not be 
used to interpret our Constitution. When we begin to look to 
international law to interpret our own Constitution, we are at a point 
then where the meaning of the U.S. Constitution is no longer determined 
by the consent of the governed.
  The importance Solicitor General Kagan places on international law is 
made abundantly clear by her actions as dean of Harvard, when she 
implemented a curriculum mandating that

[[Page 15079]]

all first-year law students take international law. She said that the 
first year of law school is the ``foundation of legal education,'' 
forming lawyers' ``sense of what the law is, its scopes, its limits, 
and its possibilities.'' Yet, U.S. constitutional law, the class that 
teaches the founding document of our legal system--a class that almost 
every other law school in the country believes first-year students 
should have--is not a mandatory first-year course at Harvard Law.
  I don't disagree that it is helpful for students to understand 
international law, but I question why it should be a first-year 
requirement and thus mandatory to graduate--especially when U.S. 
constitutional law is not required to graduate from Harvard Law School 
at all--yes, hard to believe; a student can graduate from Harvard Law 
without having to take a single constitutional law class.
  When General Kagan was asked about this, she answered:

       Constitutional law should primarily be kept in the upper 
     years, where students can deal with it in a much more 
     sophisticated and in-depth way.

  This may seem reasonable, but it does not address why a student is 
never required to take a constitutional law class to graduate. Because, 
as dean, she never saw the need to make constitutional law a 
requirement to graduate, then I am led to believe Solicitor General 
Kagan believes international law is more important than U.S. 
constitutional law. This is remarkable--or maybe I should say it is 
shocking--considering that the Constitution of the United States is our 
most fundamental law.
  I am deeply concerned then that if confirmed to the Supreme Court, 
General Kagan will put her own strongly held personal views above that 
of the Constitution and the law.
  Throughout her life, Solicitor General Kagan's background has allowed 
her to work without having to check her political and ideological 
views. Her experiences throughout her life have allowed her to indulge, 
reinforce, and ultimately submit her deeply ingrained liberal beliefs. 
In my opinion, her record strongly suggests she will not be able to act 
in an unbiased manner as a Justice.
  Her answers and evasions to our questions at the Judiciary Committee 
hearing also raise serious concern about her ability to set aside her 
personal political goals when interpreting the Constitution. I am 
convinced that once confirmed to the Court, her ``finely tuned 
political antenna'' and her ``political heart'' will drive her judicial 
method, rather than judicial restraint.
  At the hearing, General Kagan tried to distance herself from her 
Oxford thesis, where she embraced judicial activism. In that thesis, 
she wrote that ``it is not necessarily wrong or invalid'' for judges to 
try to ``mold and steer the law in order to promote certain ethical 
values and achieve certain social ends.'' Our great American tradition 
and the U.S. Constitution soundly reject the notion of judges 
overstepping their constitutional role by implementing their personal, 
political, and social goals from the bench. I am not convinced that, if 
confirmed, General Kagan will actually be able to resist the temptation 
to do that. That is because I believe her judicial philosophy is really 
nothing more than a political philosophy. This being the case, I am not 
at all convinced she will be able to apply the law impartially and not 
be a rubberstamp for the President or the leftwing interest groups' 
political and social agenda.
  Solicitor General Kagan acknowledged that it is ``difficult to take 
off the advocate's hat and put on the judge's hat.'' Yet she could not 
show us that she had the ability to make the transition from an 
academic and political operative to what we believe ought to be a fair 
and impartial jurist. Her testimony did not disprove her far-left 
record or demonstrate she would not let her political views dominate 
her approach to the law. I am not persuaded Solicitor General Kagan 
will be able to overcome that difficulty and transition into an 
unbiased judge, so I will vote no on her confirmation.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Florida is recognized.


               Measure Read the First Time--S.J. Res. 38

  Mr. LeMIEUX. Mr. President, as in legislative session, I understand 
there is a joint resolution at the desk. I ask for its first reading.
  The PRESIDING OFFICER. Without objection, the clerk will state the 
title of the joint resolution for the first time.
  The assistant legislative clerk read as follows:

       A joint resolution (S.J. Res. 38) proposing a balanced 
     budget amendment to the Constitution of the United States.

  Mr. LeMIEUX. Mr. President, I ask for a second reading, and in order 
to place the bill on the calendar under the provisions of rule XIV, I 
object to my own request.
  The PRESIDING OFFICER. Objection is heard. The bill will receive its 
second reading on the next legislative day.
  Mr. LeMIEUX. Mr. President, I rise to speak on the President's 
nomination of Elena Kagan to serve as an Associate Justice on the U.S. 
Supreme Court.
  First, I congratulate my colleague from Iowa for his tremendous 
remarks this evening, as he went through the reasons he will not be 
supporting Elena Kagan. I congratulate him on such a reasoned and 
persuasive oration this evening.
  Ms. Kagan has been nominated to fill the seat of Justice Stevens. I 
had the opportunity, in 2004, to appear before the Court in the 
position as deputy attorney general of Florida. During that time, 
because Chief Justice Rehnquist was ill, Justice Stevens presided.
  I think before I go into an evaluation of Solicitor General Kagan, it 
is important to note what a historic figure Justice Stevens is to the 
American bench and the bar.
  Even before he began his 35 years of service on the Supreme Court, he 
built a stellar reputation as a member of the bar as a lawyer and a 
careful jurist. He graduated from Northwestern School of Law. He served 
as a clerk to Supreme Court Justice Wiley Rutledge. Then he spent 
nearly 20 years, from 1949 to 1969, as a practitioner of law and one of 
the country's foremost experts on antitrust law. He taught courses at 
the University of Chicago, he served on a Department of Justice 
commission, and he authored various papers on antitrust issues.
  It was in 1970 that President Nixon appointed Justice Stevens to the 
U.S. Court of Appeals for the Seventh Circuit. After 5 years of service 
there, he was elevated to the Supreme Court.
  His service to this country should be remembered, and he gets our 
thanks. On behalf of a grateful nation, I send my gratitude to him for 
his unique and important service to this country.
  In evaluating a nominee to the U.S. Supreme Court, we in the Senate 
exercise a solemn obligation. It is a rare time in our constitutional 
democracy when the three branches come together in one proceeding. One 
of those is the unfortunate proceeding of impeachment. Thankfully, that 
is not why we are here. But the other is this proceeding--a proceeding 
when the President submits for consideration a judicial nominee who is 
then evaluated by this body under the advice and consent clause of 
article II, section 2, clause 2 of the U.S. Constitution.
  That clause reads, in part:

       [The President] shall have Power, by and with Advice and 
     Consent of the Senate, shall appoint Ambassadors, other 
     public Ministers and Consuls, Judges of the supreme Court, 
     and all other Officers of the United States. . . .

  While we do have that advice-and-consent role on a normal occasion 
for those other officers, for judges of the lower courts, for ministers 
and the like, it is a rare occurrence when this body has the honor and 
opportunity to evaluate a Supreme Court nominee. Because it is a rare 
occurrence and because this is a lifetime appointment to the head of 
one of the branches of our coequal government, we have a solemn 
responsibility to do our job and understand what our job is.
  In preparing for this responsibility of providing advice and consent 
and in being a lawyer who wanted to do a good job and be lawyerly about 
this work, I took the opportunity to try to

[[Page 15080]]

study up on what our opportunity and responsibility is in this 
confirmation of a Supreme Court Justice.
  What do these terms ``advice and consent'' mean and what is our 
responsibility and how do we undergo that responsibility to fulfill our 
constitutional obligation? Certainly, in order to fulfill it, we must 
understand it.
  What does advice and consent mean? Advice certainly means to provide 
information, counseling, and to give some feedback to the President of 
the United States as to a nominee. It seems to be more of the role of a 
counselor than anything else. But of the two words, it is not the most 
weighty.
  The most weighty of the two is consent. In fact, the advice-and-
consent function is not found within the enumerated legislative powers. 
Article I of the Constitution holds those responsibilities. Advice and 
consent is found in article II, which enumerates the powers of the 
executive branch, of the President. Advice and consent is shown as a 
limitation on the President's power. The President cannot just put 
whomever he or she wishes on a court. He can only do so with the advice 
and consent of this body. In fact, our Founders did not place this 
responsibility in both the House and the Senate. They solely put that 
responsibility among the Members of this body. ``Consent'' being the 
operative and, in my mind, meaningful term because without our consent, 
the nominee is not confirmed.
  Our responsibility is not trivial, and we are certainly not here to 
be a mere rubberstamp on the President's nomination. It is our 
obligation to thoroughly evaluate and provide that consent because, but 
for our consent, the nominee will not be seated.
  How do we execute that responsibility? What does it mean to provide 
consent and how should we do it?
  Certainly, we have to look at the nominee and the applicant. We have 
to see that the person will be a person of integrity, that they are 
thoughtful, that they have experience, and that they will uphold the 
obligations of a Supreme Court Justice.
  Last May, when I started my work of trying to evaluate how I would 
fulfill my constitutional obligation and started to do some reading of 
prior confirmation proceedings, the writings of Senators who have come 
before me, I came upon what I believe is a four-part criteria to 
evaluate a nominee to the Nation's highest Court.
  It should be stressed how important a position this is. There are 
only nine Justices who sit atop the judicial branch, and they are 
appointed for life. There is no other portion of government where this 
is true, to be head of a coequal branch for life--Justice Stevens 
serving 35 years on the U.S. Supreme Court.
  What criteria should we use? I propose the following: One, a nominee 
should present a robust body of work. Why? Because there needs to be 
something for us to evaluate. We need to have the ability, in providing 
our consent function, to look at a body of work so we can properly 
execute our responsibility.
  This does not mean, nor do I believe, that it is required for a 
nominee to the U.S. Supreme Court that they have been a judge. In fact, 
our Constitution provides no requirements for a judge to serve on the 
U.S. Supreme Court. This is unlike what we see in the Congress. There 
are specific requirements of how old you have to be to be in the House, 
to be in the Senate, how many years you must be a resident of this 
country. The same requirements apply to the President. There are no 
requirements for a judge as it is stated in the Constitution, for a 
Justice of the Supreme Court.
  In evaluating that there are no requirements, we certainly need to 
know what the Justice stands for and how the Justice will fulfill his 
or her obligations on the Court. Without a body of work, that is very 
difficult to evaluate. While there is no requirement that one be even, 
in fact, a lawyer, although every person who has been confirmed has 
been a lawyer, and there is no requirement that you be a judge, if you 
are not a judge, you do not have a robust body of work for us to 
evaluate. That makes it more difficult on our part to make a decision 
of whether we should give our consent and, I suggest, it provides an 
additional burden to the nominee to be forthcoming when answering 
questions. Since we do not have a body of work to evaluate, since we 
cannot look at prior decisions that a judge has handed down, to know 
how a judge ruled in the past and, therefore, glean how the judge will 
rule in the future, that nominee must be forthcoming so we can hear how 
he or she will do his or her job as a Justice.
  Second, the nominee must demonstrate an unfailing fidelity to the 
text of the Constitution and proper restraint against the temptation to 
expand judicial power. Why do we find this important? I will talk about 
this more in a minute. It is because we have a separation of powers and 
checks and balances that were imbued in our Constitution by our 
Founders. They intended for our government to be counterbalanced by 
each branch--the legislative, the judicial, and the executive.
  It is the beauty of the Constitution that no branch will exert too 
much authority because it will be checked by the other, each branch 
having checks on the other. Furthermore, sometimes forgotten, is that 
the Federal Government is part of a federalist society. We are a 
Republic, and the Federal Government is only one piece of the 
governmental structure. The rest are the governments of the States and 
the powers and rights which are left to the people under our 
Constitution. Our Founders sought checks and balances between the 
Federal Government and the State governments and the people as well.
  A nominee must understand that the judiciary cannot expand its role 
beyond the confines our Founders intended. In fact, we know our 
Founders intended for the judiciary not to serve as a legislative 
branch because in article II, the legislative power is vested solely in 
the Congress.
  For a judge or Justice to take on a legislative role, to not have a 
firm adherence to the law as written, violates the separation of 
powers, violates the rights and responsibilities of the Congress.
  Third, the nominee must make determinations about the meaning of 
Federal law and the Constitution and apply the law as written, again, 
because of that separation of powers.
  Fourth, the nominee must understand the Court's role in stopping 
unconstitutional intrusions by the elected branches. Our Founders knew 
each branch of government would seek to expand the scope of its power. 
That is the beauty of the checks and balances system--to keep each body 
in check. They did not want a strong executive. They worried about the 
tyranny of the executive. But they also worried about the tyranny of 
the legislative. Nor did they hope the judiciary would become too 
strong.
  Alexander Hamilton wrote in Federalist No. 78 that ``it is the courts 
that will serve as the bulwarks of limiting Constitution against 
legislative encroachment.''
  Our Founders designed this intricate system of checks and balances to 
keep all the governmental bodies and institutions in check, to not 
expand to the detriment of another body, to not expand to the 
detriments of our rights and the rights of the States.
  In evaluating Solicitor General Kagan--and I note also in comparing 
her to Justice Stevens--I find she does not have the experience that 
gives us the opportunity to evaluate her work, to determine what kind 
of judge or Justice she would be.
  In preparing for this decision, I went back and I read a book that 
was written by one of our predecessors, Senator Paul Simon. It was a 
book he published in 1992. The book is called ``Advice and Consent.'' 
The book concerns the confirmation hearings of Justice Bork and Justice 
Thomas.
  Interestingly, in this book--and it is a very fine book and I commend 
anyone who is interested in this topic to read it--there is a foreward 
in the book by Laurence Tribe, the famous constitutional scholar, at 
the time the Tyler Scholar of Constitutional Law at Harvard University, 
with whom I believe Solicitor General Kagan served

[[Page 15081]]

when she was the dean of Harvard Law School.
  In this foreward, I think that Professor Tribe provides a very cogent 
and focused analysis of the problem we experience in the modern 
confirmation setting where nominees fail to provide sufficient answers 
to questions.
  Why this is so troubling with Solicitor General Kagan is because we 
do not have the body of work to evaluate. It has been the course, in 
the past 20 years, that it seems all the nominees to the Supreme Court 
give these sort of vapid answers. That is not my phrase. That is, in 
fact, her phrase. We will talk about that in a moment--vapid answers 
that come from questions from the Senators on the Judiciary Committee, 
failing to articulate what your position is on a particular point of 
law, all the more concerned when we have no record to evaluate.
  Here is what Professor Tribe said:

       The Court and the Nation cannot afford any more ``stealth'' 
     nominees who steadfastly decline to answer substantive 
     questions the Senate might pose on the oft-invoked ground 
     that the matter might come before the Court during their 
     possible tenure. This easy refrain does not provide a valid 
     excuse for stonewalling, no matter how frequently it is 
     repeated . . .
       On the contrary, the adversary system works best when all 
     concerned, and not just those who nominated the judge, know 
     what there is to be known about the judge's starting 
     predispositions on a pending issue. And let's stop pretending 
     that such predispositions do not exist. It hardly fosters 
     fairness to claim that a mind is completely neutral when in 
     fact a lifetime of experiences has unavoidably inclined it 
     one way or another and to other, and to equate an open mind 
     with a blank one insults the intelligence of all concerned.

  He goes on to say:

       A nominee whose record is too pale to read with the naked 
     eye or whose views are shrouded in fog too dense for anything 
     but the klieg lights of national television to pierce is 
     probably ill-suited for a lifetime seat on the Supreme Court 
     in any event.

  Let me repeat:

       A nominee whose record is too pale to read with the naked 
     eye or whose views are shrouded in fog too dense . . . is 
     probably ill-suited for a lifetime seat on the Supreme Court.

  Mr. President, unfortunately, that describes Solicitor General Kagan. 
She is an extremely bright and articulate woman. She has a tremendous 
academic background. I commend her for her public service--of serving 
in a Presidential administration. I commend her for serving as dean of 
a law school. That too is public service. But our job is to evaluate 
these nominees, and we cannot evaluate them if they have no record of 
how they would rule or how they have ruled, and they provide no 
sufficient information when they come before the Judiciary Committee of 
this body. Without that information, how can we faithfully provide our 
consent?
  There is a notion in the law of consent needing to be informed. In 
fact, it can't really be consent in the law if it is not informed. Yet 
Solicitor General Kagan, without a judicial record and a failure to 
directly and clearly answer questions, as Professor Tribe writes, fails 
to give us the information to allow us to give consent in an informed 
way.
  We need to look no further than her own words when she wrote, in a 
spring 1995 Law Review article. It was a comment on a book that was 
talking about the confirmation mess, and then-Professor Kagan, also 
bemoaning the state of confirmation hearings, said:

       When the Senate ceases to engage nominees in meaningful 
     discussion of legal issues, the confirmation process takes on 
     an air of vacuity and farce, and the Senate becomes incapable 
     of either properly evaluating nominees or appropriately 
     educating the public.

  She described the process before the Judiciary Committee as becoming 
vapid, and, unfortunately, even though she should know more than anyone 
else--because those were her words, the charade that she condemned in 
her article in the 1990s--she engaged in the same charade when she 
appeared before the Judiciary Committee.
  ``A nominee whose record is too pale to read with the naked eye or 
whose views are too shrouded in fog . . . is probably ill-suited for a 
lifetime appointment,'' said Professor Tribe.
  Ms. Kagan also has very little practical experience. Unlike Justice 
Stevens, who practiced law for 20 years, Ms. Kagan practiced law for 2. 
Never having served before as a judge, we don't know her record. She 
said that the confirmation proceedings in the past had an ``air of 
vacuity and farce,'' a ``vapid and hollow charade.'' Instead of 
following her own admonishment, she participated in that charade. She 
engaged in the same vapid exercise that she condemned.
  The burden was on Ms. Kagan to demonstrate how she would rule as a 
judge. With no record for us to evaluate, she could not engage in the 
same charade that she had previously condemned and leave us with 
nothing to know as to how she would act in a lifetime appointment--an 
appointment, if Justice Stevens' record is any sort of indication of 
how long a ``Justice Kagan'' might serve, for 35 years.
  I have an obligation, Mr. President, under article 2, section 2 to 
provide advice and consent, and I cannot do so where the nominee cannot 
or does not provide a record that my colleagues and I can evaluate. We 
are left without a solid basis upon which to judge how she would judge.
  During the Judiciary Committee proceedings, she said she would give 
binding precedent all the respect of binding precedent. That is 
meaningless. It gives us no indication of how she might make her 
decisions, how she might rule.
  So I am left with these serious concerns. I am left with the serious 
concerns about her commitment to uphold the constitutional principle of 
a limited government, the fundamental protections of the second 
amendment, and placing law ahead of her personal and political views.
  I spoke before about one of these criteria being the fidelity to the 
Constitution and the principle of a limited Federal Government. 
``Thomas Jefferson warned us that our written constitution can help 
secure liberty only if it is not made a blank paper by construction.''
  Ms. Kagan testified that her whole life provided indications of what 
kind of judge or Justice she would be. And in that statement I agree.
  As mentioned earlier, before law school, when she was writing a 
thesis at Oxford, she stated that ``new times and circumstances demand 
a different interpretation of the Constitution,'' and that judges may 
``mold and steer the law in order to promote certain ethical values and 
achieve certain social ends.'' That is not what the Founders intended 
for a Justice of the Supreme Court.
  In that same thesis, she wrote:

       The judge's own experience and values become the most 
     important element in the decision. If that is too results 
     oriented, so be it.

  Mr. President, that is a violation of the constitutional requirement 
that all power legislative be vested in this Congress.
  I was concerned about the colloquy that she had with Senator Coburn. 
In fact, it was something I discussed with her in person prior to her 
testimony before the Judiciary Committee. This colloquy was about the 
commerce clause and whether or not it was limited. Remember that our 
Founders intended for the Federal Government to be limited in its 
powers. That is why there are enumerated powers in article 1. They are 
not plenary; they are limited by their number.
  Senator Coburn asked her about sponsoring a bill, about requiring 
Americans to eat their fruits and vegetables, and it got a response 
from Solicitor General Kagan that it ``sounds like a dumb law.'' But 
Senator Coburn asked whether or not it would be constitutional and she 
failed to provide an answer.
  Senator Coburn then put the meat on the bones and asked:

       What if I said that eating three fruits and three 
     vegetables would cut health care costs by 20 percent? Now 
     we're into commerce. And since the government says that 65 
     percent of all the health care costs [are because of health 
     care], why isn't that constitutional?

  No real meaningful answer to give clarity of how Solicitor General 
Kagan as Justice Kagan would rule.
  Mr. President, the Federal Government has expanded its powers beyond

[[Page 15082]]

what our Framers intended--far beyond what our Framers intended. James 
Madison, in Federalist 45, said:

       The powers delegated by the proposed Constitution to the 
     federal government are few and defined. Those which are to 
     remain in the State governments are numerous and indefinite.

  But that is not how our constitution is modernly interpreted. We are 
away from what our Founders intended. We are away from the clear 
meaning of the words of the Constitution. And Solicitor General Kagan 
doesn't tell us that the commerce clause has a limit, in her view. And 
it is through the commerce clause that this Congress and Congresses in 
the past have sought to enter and to invade every portion of life in 
this country--things in which our Founders never intended the Federal 
Government to be involved.
  It appears Ms. Kagan has this same view of an expansive Federal 
Government--a Federal Government that makes States its dependents and 
apparatuses thereto, a Federal Government that has no limits, a Federal 
Government that can invade every portion of our lives, a Federal 
Government that is too vast, too expensive and beyond what our Founders 
intended.
  I am also concerned about Solicitor General Kagan's views on the 
right to bear arms enumerated in the second amendment. I think she has 
too little regard for some of our Constitution's most fundamental 
protections. As a law clerk, she was dismissive of the second 
amendment, saying she was not sympathetic to the amendment.
  During the Clinton administration, she developed numerous anti-second 
amendment initiatives. In her confirmation process for Solicitor 
General, she declined to comment on second amendment rights.
  There was a discussion earlier of my friend and colleague from Iowa 
talking about natural rights. I think it is important for us to 
remember the setting upon which our Framers brought this constitution 
to bear. There were the Articles of Confederation--a loose arrangement 
between the States where there was no central government. The Founders 
took it upon themselves to seek to enact a stronger Federal system but 
a system that, as the 9th amendment, the 10th amendment and other 
provisions of the Constitution show, leaves rights to the States and to 
people; that enumerates specific powers of the Federal Government.
  Remember, initially, there were not even the first 10 amendments. 
Remember, there was a confirmation battle as to whether the States 
individually would ratify the Constitution. There were anti-Federalists 
who thought the constitution had gone too far and given too much 
authority to the Federal Government, and our Founders Hamilton, Madison 
and Jay, in writing the Federalist Papers, had to make the case of some 
form of central government. But they gave the assurances that most of 
the obligations to govern would be left to the people and the States. 
Ms. Kagan doesn't have that view, it appears.
  Finally, I am concerned about the way that then-Dean Kagan treated 
the military as the dean of Harvard Law School. I think it is 
outrageous that the U.S. military was not allowed to recruit on campus 
while she was the dean of the law school. And this idea that the 
military could go through another part of the school--the Veterans 
Association but not the Career Services Office--is outrageous. The 
Veterans Association had no funding, no office. It was not set up to 
allow law students to interview with the military.
  Some have called this the same as ``separate but equal.'' It was not 
even equal. It is outrageous. It is outrageous beyond the fact that 
Harvard received Federal dollars. It is outrageous that a premier 
institution such as Harvard University, one of our first institutions 
of higher learning, known throughout the world as being an exceptional 
school, would not allow the military the benefit of its students to 
serve by being interviewed on campus, in a regular on-campus process in 
which every law firm or other agency of government is allowed to 
participate. And that is a decision that she presided over. That is an 
error of judgment.
  But I also believe that it was an error of law. In 1996, Congress 
passed the Solomon Amendment allowing the Secretary of Defense to deny 
Federal grants to institutions of higher education if they prohibited 
ROTC or military recruitment on campus. Under the Harvard Law School 
antidiscrimination policy, the military was banned from utilizing its 
services, and it was concluded that, therefore, those Federal funds 
would be suspended.
  Ms. Kagan refused to abide by that Solomon Amendment when she was the 
dean. In 2002, Harvard was informed by the Department of Defense its 
practice of letting military recruiters contact students through the 
Harvard Law School Veterans Association, but not the Office of Career 
Services, violated the Federal law. In response, Dean Kagan filed a 
brief challenging the constitutionality of the Solomon Amendment, which 
is her right--not a good decision but her right.
  The Court of Appeals for the Third Circuit enjoined the law. And Ms. 
Kagan reinstated Harvard's, in my view, discriminatory policy.
  Now, you might say: Well, the court ruled; therefore, it was 
appropriate for her, if she so chose, to go back to the previous policy 
because that had been enjoined. However, Massachusetts is not in the 
Third Circuit, it is in the First. An appellate decision in the Third 
Circuit is not binding on the First Circuit. If Dean Kagan wanted to go 
to court again and seek to have it applied, that would have been one 
thing. What she did instead is unilaterally follow a decision that had 
no effect upon her and, in my view, violates the law.
  Again, I think Solicitor General Kagan is an extremely intelligent 
person, an articulate person. I think that she has a commendable career 
of public service. But she has failed to meet the burden that is 
required of someone with no judicial record. She has failed to inform 
us of how she would judge as a member of the U.S. Supreme Court. With 
no record to read, there is heightened scrutiny on the nominee, and we 
did not have the opportunity to have full and forthcoming answers from 
Ms. Kagan. Instead, what we had was the same vapid and vacuous answers 
that she condemned in her law review article in the mid-1990s, the same 
type of charade Lawrence Tribe said makes somebody ill-suited for a 
lifetime appointment, with such a thin record.
  If perhaps she would have been more forthcoming, I would have been 
able to come to a different conclusion. But when you take the lack of 
her record, her inability to provide clear responses to questions to 
give us indication of how she would rule, and the concerns about the 
second amendment, about how she treated the military at Harvard, and 
her views about the activism of the Court--in light of all those 
reasons, I will be voting no on Ms. Kagan's confirmation.
  I yield the floor.

                          ____________________