[Congressional Record (Bound Edition), Volume 156 (2010), Part 11]
[Senate]
[Pages 15092-15136]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 F_____
                                 

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

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to resume consideration of 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.
  The PRESIDING OFFICER (Mr. Durbin). The Chair announces that the time 
between now and 12 noon will be equally divided between the chairman of 
the Senate Judiciary Committee and the ranking Republican.
  The Senator from Illinois is recognized.
  Mr. BURRIS. Mr. President, over the last few weeks, many Americans 
have watched Supreme Court confirmation hearings that took place before 
the Senate Judiciary Committee. At times, the atmosphere was tense, but 
my colleagues on both sides of the aisle performed their solemn duty 
under the Constitution. They subjected the President's nominee to 
rigorous questioning and took a hard look at her qualifications.
  At every turn, the nominee offered thoughtful testimony and proved 
herself to be a woman of powerful intellect and sound judgment.
  Earlier this week I met with Solicitor General Elena Kagan in my 
office. I congratulated her on her nomination to the highest Court in 
the land. Then I asked her some tough questions of my own.
  The power to advise and consent is not one this Senate should ever 
take lightly. As a trained lawyer and former attorney general of 
Illinois, I have a deep understanding of the Court's enormous impact on 
the lives of ordinary Americans. These nine individuals have the power 
to set binding precedent. They are trusted to navigate difficult legal 
ground, and in every case, they hand down rulings that carry the full 
weight of law.
  There are no armies to back them up. There is no threat of violence; 
just a quiet force of a written opinion. That

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is what makes this country so remarkable. We are a nation of laws. We 
have dedicated ourselves to the principle of self-government. Although 
our legal landscape is consistently evolving, the Founders of this 
great Republic created a strong judiciary charged with interpretation 
of these laws and upholding the Constitution. So when this body 
considers a nomination to the Federal bench, it is a duty my colleagues 
and I take very seriously.
  After speaking with Solicitor General Kagan on Tuesday, I am 
confident she will be a worthy addition to the Supreme Court. General 
Kagan's legal training is second to none, and her diverse experience 
will bring added depth to the highest Court in the land.
  As a former law clerk, a private practice attorney, a professor, and 
dean of Harvard Law School, Elena Kagan has proven herself to be a 
world-class legal mind. As the current U.S. Solicitor General and as a 
former associate White House counsel, she possesses a keen 
understanding of current issues and a strong commitment to the values 
of public service.
  As I take the floor today, she is poised to become the fourth female 
Justice ever to serve on the U.S. Supreme Court. More important, she 
will be the first Justice in many years who was not elevated to the 
Court from a lower court. I believe this will lend fresh perspective to 
the highest judicial body in our land that will bring new diversity to 
the Supreme Court and help to build debate rather than consensus.
  It is our constitutional duty to shape a high Court that is inclusive 
of all considerations and points of view. Each ruling is grounded in 
tested reasoning and bound by the weight of precedent. If Elena Kagan 
is confirmed, I am confident she will help do just that. She will be a 
new, independent voice standing on the side of fairness and reason.
  I urge my friends on both sides of the aisle to join me in supporting 
her timely confirmation.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mrs. HUTCHISON. Mr. President, I rise today to speak about the 
consequential vote the Senate is getting ready to take, probably 
tomorrow, on the nomination of Solicitor General Elena Kagan to the 
U.S. Supreme Court.
  Without question, the advise-and-consent role of the Senate on 
Supreme Court appointments is very important. It is one of our most 
important constitutional duties. Like elections, Supreme Court 
appointments have consequences.
  Nearly a year ago, this body considered the record, the judicial 
philosophy, and the statements of Justice Sonia Sotomayor. At the time, 
I vocalized my serious concerns about her second amendment views and 
her correlating judicial record on the Second Circuit Court.
  When Ms. Sotomayor was questioned about these views during her 
confirmation hearing, she said:

       I understand the individual right fully that the Supreme 
     Court recognized in Heller.

  Which was the previous case that stated the second amendment is an 
individual right to keep and bear arms.
  Because of her record in the Second Circuit on this issue, I was not 
convinced that she would uphold the Framers' intent that the right to 
keep and bear arms is, indeed, a fundamental individual right, and 
largely on her record on this issue I opposed her nomination.
  Just last month, Justice Sotomayor voted with the minority on the 
McDonald v. City of Chicago case to uphold Chicago's gun ban. This 
minority opinion stated:

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

  That was a disappointment, but it was not a surprise. It reaffirms 
why we must thoroughly scrutinize the nominee's judicial philosophy and 
demonstrated adherence to the Constitution as we determine whether to 
support a nomination.
  We have been faced with a somewhat unique confirmation process for 
Ms. Kagan. She has primarily worked in politics and academia rather 
than in the actual practice or adjudication of law. It is not a 
negative to me that she has not been a judge. I do think having a new 
perspective of a practicing lawyer or someone who has clearly stated 
and written extensively on their Constitutional views could be a good 
thing. But it also means that if you have someone who has not actually 
practiced law, there is not very much evidence on her methodology or 
viewpoints on major constitutional issues. We have to use the 
information we have to make a judgment.
  I turn to the biggest incident in my mind that causes me to have 
great concerns about her nomination. It was Ms. Kagan's decision to ban 
military recruiters from Harvard's Office of Career Services when she 
was dean of the Harvard Law School. When my distinguished colleagues on 
the Judiciary Committee pressed her on this issue during her 
confirmation hearing, Ms. Kagan claimed that ``don't ask, don't tell'' 
violated Harvard's antidiscrimination policy. Thus, she denied our 
military equal access to some of the brightest new legal minds in the 
Nation, and she did so in a time of war.
  This snub demeaned our military and defied Federal law. The U.S. 
Supreme Court unanimously disagreed with her actions in its 9-to-0 
ruling on the Solomon Amendment.
  In the Senate, we must strongly consider how Ms. Kagan's personal 
political views guided this and other decisions she has made while 
holding positions of authority. I am deeply concerned that Ms. Kagan 
will not exercise the impartiality that must be expected of any nominee 
seeking a lifetime appointment to our Nation's highest Court.
  Another factor that troubles me is her apparent indifference to 
private property rights. During the confirmation hearings, my colleague 
from Iowa, Senator Grassley, asked Ms. Kagan her view on the 2005 
ruling on the eminent domain case Kelo v. the City of New London. Ms. 
Kagan evaded the constitutionality of private property rights and 
suggested that the goal of Kelo was to leave the issue to the States.
  I do not believe the Supreme Court decision in Kelo did that. It 
actually empowered a local entity to trample private property rights 
that I believe are protected under the Constitution.
  As I have already mentioned, we have less of a record to examine Ms. 
Kagan's qualifications because she has not been a judge. All Justices 
currently on the bench served as judges before their Supreme Court 
appointments. I do believe there is merit to bringing the perspectives 
of other sectors of the legal field to the Supreme Court. It is not a 
point against her at all that she was not a Federal judge.
  However, Ms. Kagan also has had limited experience in actual legal 
practice, which provides us a very thin record on which to evaluate her 
judicial philosophy. Indeed, one statement she made that might give us 
a glimpse into her philosophy is from her Oxford graduate thesis in 
which she stated: ``It is not necessarily wrong or invalid'' for judges 
``to mold and steer the law in order to promote certain ethical values 
and achieve certain social ends.''
  She was a student when she wrote this, so I give her some leeway 
because she might have changed her views since then. But she did not 
say she changed her views when she had the opportunity to before the 
Judiciary Committee during her confirmation hearings. She has not 
disavowed judicial activism, which makes me think then perhaps that is 
a guiding principle in her thinking.
  The experience we have to look at, specifically her tenure as dean of 
Harvard Law School, gives evidence of her personal views instructing 
her professional decisions in order to promote a social agenda.
  I simply cannot reconcile Ms. Kagan's sparse record and my concerns 
about whether she can be an impartial arbiter of the law. I will say I 
think Ms. Kagan's academic record is excellent, and that is a major 
qualification we would expect of a Supreme Court nominee. She has 
certainly done good

[[Page 15094]]

things with her life. But the areas where I am concerned, which would 
be the protection of the second amendment as an individual right, which 
was clearly the intent of the Framers of our Constitution and which the 
Supreme Court has already held to be the doctrine of our country, I 
don't believe she is going to agree with that position from what she 
has said in her record, as thin as it is.
  I have to say that I am very concerned about her position on the 
military, the respect for the military, the importance of the military 
in our great country, and the protection of freedom our military 
provides. To disallow military recruiters on the Harvard campus at the 
same location where everyone else offers their recruitment 
opportunities weighs heavily on me. In addition, her views on private 
property rights and the Supreme Court Kelo decision are directly 
opposite from mine and from what I believe are inherent Constitutional 
protections. I think the Supreme Court was wrong. Even people I have 
voted to confirm as a Senator on the Supreme Court, in my opinion, were 
wrong on the Kelo decision. I do think private property rights are part 
of the success of America and one of the strongest provisions in the 
Constitution that provides for our free enterprise system, as well as 
the rights of individuals.
  I am not going to support Ms. Kagan's appointment.
  Last but not least, I will say in weighing my responsibility as a 
Senator and looking at Supreme Court appointments and any Federal 
judicial appointment, but certainly for appointments to the highest 
Court in our land, Justices are there simply to be arbiters of the law. 
They are not elected and therefore have no real accountability to the 
people of our country. It is elected officials who make and implement 
the laws whom people always have had the ability to reject. That is 
part of the balance in our system. Our President is elected. Our 
Congress is elected. Congress makes the laws and the President signs or 
does not sign a law. The Supreme Court is a lifetime appointment. 
Because it is a lifetime appointment, the founders in their wisdom knew 
the Court should not be responsible for making law because they have 
not been elected by the people of our country and they will not have to 
face the electorate of our country. They need to have a judicial 
temperament and a view of the Constitution that says they are going to 
try to determine the intent, not try to change the intent, just because 
it differs from their particular views. Therefore, I am always very 
studied in my approach to Federal appointments that have a lifetime 
tenure because I think when they will not have to face any future 
electorate, when the people of our country will not have an opportunity 
to hold them accountable for what they have done, the Senate's advise 
and consent role is even more important. So I have to say that while I 
respect her as a person and as an academic, I cannot support her 
nomination to be a member of the U.S. Supreme Court.
  Mr. President, I yield the floor, and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER (Mr. Burris). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SPECTER. 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. SPECTER. Mr. President, I have sought recognition to comment on 
the reasons for my vote for the nomination of Solicitor General Elena 
Kagan to the Supreme Court and to comment more broadly on the status of 
the Court and the nomination process, which I have seen during my 
tenure in the Senate, where some 14 nominees have been submitted by 
Presidents.
  I have sought 1 hour, which is the longest I can recollect asking to 
speak, because of the wide scope of issues which the Senate faces in 
its constitutional responsibility for the confirmation of Supreme Court 
Justices.
  Early on, as I observed the nominees, I came to the conclusion that 
nominees would answer only about as many questions as they thought they 
had to to be confirmed. The nomination process during my tenure reached 
the most extreme point of nonanswers during the confirmation in 1986 of 
Justice Scalia.
  Justice Scalia stated in advance that he would not talk about 
ideology or philosophy. I saw Justice Scalia at the 90th birthday party 
of a distinguished American, former Secretary of Transportation, Bill 
Coleman, and in a group of people I joked a little and I said: Mr. 
Justice Scalia, even prisoners of war have to give name, rank, and 
serial number. When your nomination was up you would only give your 
name and rank--which was in a light spirit, and he took it that way. 
But virtually no answers were given during the course of that 
proceeding, and he was confirmed unanimously, 98 to nothing.
  At that time, Senator DeConcini and I were considering a resolution 
to establish standards for the Senate to require responses by nominees. 
But then, in 1987, the confirmation proceeding of Judge Bork occurred. 
In that proceeding Judge Bork answered many questions which, in fact, 
he had to because he had such an extensive so-called paper trail. He 
had written a very famous Law Review article in 1971 in the University 
of Indiana Law Review on the doctrine of original intent. If we look to 
original intent, for example, when the 14th amendment was adopted, 
equal protection, the galleries in this Chamber were segregated. That 
was hardly a standard that could be applied in an era of Brown v. Board 
of Education, and it was not. We have a Constitution which evolves in 
accordance with the changing values of our society, and Judge Bork was 
compelled to answer a great many questions.
  So Senator DeConcini and I shelved our idea to try to find some 
standards, but then in the intervening nominations we had nominees 
revert to form, answering only as many questions as they thought they 
had to in order to be confirmed and not to have any significant 
disclosures on ideology or philosophy. I thought, when we had the 
nomination of Elena Kagan, that there would be an opportunity for 
greater insights because she had written a now famous Law Review 
article for the University of Chicago, in 1995, sharply criticizing 
Supreme Court nominees by name and sharply criticizing the Senate. She 
said in that article that Justice Ginsburg and Justice Breyer had 
stonewalled, had not given any meaningful answers. She criticized the 
Senate for, in effect, letting them get away with that.
  But during the confirmation proceedings of Ms. Kagan, it was a repeat 
performance, and the issue was brought and I shall illustrate it with 
one line of questioning which I asked her. It was about what was the 
requisite record that Congress had to have to uphold the 
constitutionality of legislation it passes. The standard had been, for 
decades, that if there was a rational basis for the legislation, it 
would be upheld. That was the standard in the Wirtz case in 1968, 
articulated by Justice Harlan.
  Then, in a sharp departure, in 1997 in a case captioned City of 
Boerne, the Supreme Court plucked out of thin air a new standard for 
the adequacy of a record. They said the standard had to be 
proportionate and congruent. Justice Scalia later criticized that 
standard as being a ``flabby test,'' which enabled the Court to in 
effect legislate. They decided it however their predilections would 
call for. In two cases under the Americans with Disabilities Act--in 
the case of Tennessee v. Lane and in the case of Alabama v. Garrett--
the Supreme Court came to opposite conclusions, interpreting two 
sections of that same act which had a very voluminous record, which 
illustrates the vagueness of the standard and further illustrates the 
words of Justice Scalia that it was a ``flabby standard'' which enabled 
the Court to, in effect, legislate.
  So the question which I asked Ms. Kagan was, What is the standard? In 
her Law Review article she had been explicit in saying that standards 
involving how you decide a case were well within the ambit of 
appropriate senatorial inquiry in a confirmation proceeding. I asked 
her the question, and she declined to answer, as she did

[[Page 15095]]

repeatedly not just for my questions but for questions of other 
Senators.
  I raised the issue in those confirmation proceedings as to whether we 
could find some way to get reasonable answers short of voting no.
  I noted Senator Kyl in his presentation yesterday cited that 
question, which is on his mind as well.
  In the final analysis, as I stated during the course of the Judiciary 
Committee deliberations, I have decided to vote for Ms. Kagan because 
she was following an accepted pattern. That is what nominees have been 
doing, and it has been accepted by the Senate. I did not think it 
appropriate to cast a protest vote for her testimony. There were facets 
about her nomination which I found very appealing. I found it very 
important that she cited Thurgood Marshall as a role model. With that 
in mind, and with the fact that she was replacing a Justice on the 
liberal wing, it seemed to me that her confirmation would maintain the 
current balance.
  I am also impressed with the President's nominating another woman. I 
think that is very salutary. When I came to the Senate, prior to the 
1980 election, we only had one woman Senator, Senator Nancy Landon 
Kassebaum. Now our body is much improved with the 17 women we now have 
in this body. I thought that was a desirable trait. I also thought it 
was good to have somebody on the Court who had not been on the circuit 
court of appeals. All of the other eight Justices come from the circuit 
courts of appeals, and I have urged Presidents in the past to nominate 
somebody with a broader background, broader diversity of experience. I 
think Ms. Kagan represents that quality and that attribute.
  I have been asked about the distinction I make between my negative 
vote for Solicitor General contrasted with my affirmative vote for 
Supreme Court. It is based on the fact that I thought for the Solicitor 
General we were entitled to answers. In that proceeding in the 
Judiciary Committee she refused to answer questions which I thought 
were requisite.
  I asked her what her position would be on the case involving an 
appeal by Holocaust victims to the Supreme Court of the United States. 
The Court looks to the Solicitor General for the position of the 
government. It seemed to me that case should have been heard by the 
Supreme Court. The argument was made that the courts ought to be 
foreclosed from deciding it because it ought to be governed by an 
international pact between governments. It seems to me the Holocaust 
victims were entitled to their day in court.
  Ms. Kagan would not answer the question.
  I similarly raised what position she would take as Solicitor General 
on an appeal taken by the survivors of victims of 9/11. The Court of 
Appeals for the Second Circuit had said there was not State-sponsored 
terrorism involved because Saudi Arabia was not on the list. This is in 
the face of voluminous evidence that Saudi princes and Saudi charities 
had financed the terrorists on 9/11. There is nothing in tort exception 
to the Foreign Sovereign Immunities Act which requires a country to be 
on the list of state sponsors of terrorists.
  The Solicitor General said the Second Circuit was wrong but used the 
reason, well, the acts occurred outside the United States, which seemed 
to be insufficient when the consequences were devastating within the 
United States, with airplanes being flown into skyscrapers in New York 
City. Her refusal to answer those questions led to my negative vote in 
that situation.
  The nominations which I have seen, especially the last four 
nominations, bring into very sharp focus two major problems which 
confront Senators in seeking to exercise our constitutional 
responsibility on confirmation. As I have already commented to some 
extent, one is the difficulty of getting answers to get some 
significant idea of the nominee's ideology or philosophy. The second 
problem is the factor that when nominees have testified in response to 
questions--as Justice Alito and Chief Justice Roberts did--on issues 
such as deferral to congressional factfinding and to stare decisis, 
what recourse do we have when the nominees, once seated, do a 180-
degree reversal.
  I believe there is an approach we can undertake on that, and that is 
to inform the public as to what is going on and to have a public 
understanding of those positions as a factor, which I think, 
realistically viewed, could influence Justices to stand by, at least in 
a respectable way, their testimony at the confirmation hearing.
  The difficulty with the recent trend in the Supreme Court decisions, 
as I see it, is that there has been an abrogation of the fundamental 
doctrine, constitutional doctrine of separation of powers. When the 
Constitution was formulated, as is well known, there were three 
branches of government--article I, the Congress; article 2, the 
executive; and article 3, the court system.
  The separation of powers was viewed as an indispensable element in 
appropriate governance, providing for the checks and balances.
  But we have seen in recent decades that the decisions of the Court 
have taken a great deal of power from the Congress and a great deal of 
power has been shifted to the Court. There have been very significant 
cases where the Court has declined to act where significant power has 
shifted to the executive branch.
  I will be very specific. In United States v. Lopez, decided in 1995, 
the Supreme Court altered 60 years of uniform interpretation of the 
commerce clause which has been the basis from the 1930s for declaring 
New Deal legislation unconstitutional. In the face of a Court packing 
plan President Roosevelt was articulating to raise the number of 
Justices to 15, the Court had given broader latitude to congressional 
authority under the commerce clause, and that was abruptly changed in 
the Lopez case.
  The case of United States v. Morrison involved a further abrogation 
of congressional authority. That case involved legislation protecting 
women against violence. There, the Supreme Court of the United States, 
in the face of a mountain of evidence, as specified in the dissent by 
Justice Souter, ruled that the act was unconstitutional. The reason for 
the ruling, according to the opinion of the Court, written by Chief 
Justice Rehnquist, was the congressional ``method of reasoning.'' When 
I saw that in the opinion, I wondered what transformation there was on 
method of reasoning when a nominee stepped outside of the Senate 
hearing room on a nomination to walk across Constitution Avenue and sit 
on the Supreme Court. I wondered what was the method of reasoning which 
distinguishes what goes on in this Chamber from what happens a few 
hundred yards to the east in the Supreme Court of the United States. 
But that is what the Supreme Court decided--it was our method of 
reasoning which was faulty. Method of reasoning. Another way of saying: 
You are stupid. Method of reasoning. Another way of saying: You don't 
know what you are doing. Well, the Congress's power, under the 
Constitution, is to legislate, and it has been regarded for decades--
really, centuries--that when Congress has a rational basis for what we 
do, it is upheld by the Supreme Court of the United States.
  A few minutes ago, I referred to the cases of Tennessee v. Lane and 
Alabama v. Garrett, two cases which were decided under the Americans 
with Disabilities Act. Once again, there were hearings held in many 
States, enormous records, but the Supreme Court of the United States 
decided in Tennessee v. Lane, which involved access to public 
facilities--a paraplegic was unable to get to an elevated floor in a 
Tennessee courtroom. They had no elevator. The Supreme Court said that 
was a violation of the Americans with Disabilities Act under the 
standard of congruence and proportionality. Then in Alabama v. 
Garrett--same act, same kinds of voluminous hearings--which raised the 
issue of employment discrimination, the Supreme Court of the United 
States decided by five to four that it was unconstitutional.
  It was in the Lane case that Justice Scalia articulated his now often 
quoted comment that congruence and proportionality is a ``flabby test'' 
which calls upon the Supreme Court to check the

[[Page 15096]]

homework of the Congress. That is the way he put it. What we do over 
here requires someone else to check on our homework, as a parent would 
on a fifth grader, and Justice Scalia commented that was not the way to 
treat a branch of coordinate authority as the Constitution requires.
  The Supreme Court in those cases has taken power to themselves to 
disagree with our factfinding and to declare acts unconstitutional 
under this standard which is not understandable on any rational basis, 
proved by the Court itself on those two cases, Garrett and Lane.
  The Court has further significantly affected the balance of power and 
the separation of power by deciding not to decide certain cases. In 
exercising their discretion not to take cases, they have let rulings 
stand which have given an enormous amount of what is legitimately, in 
my opinion, congressional authority to the executive branch of 
government.
  I cite first the situation involving the terrorist surveillance 
program-- warrantless wiretaps put into effect after 9/11--contrasted 
with congressional authority under the Foreign Intelligence 
Surveillance Act, which establishes, by act of Congress, that the 
exclusive means to invade privacy on a wiretap is by going to a court, 
having an affidavit stating probable cause, having judicial review and 
the judge deciding that the requirements of the fourth amendment 
prohibiting unreasonable search and seizures are satisfied. Well, the 
Supreme Court of the United States has declined to hear that case.
  A Federal judge in Detroit declared the terrorist surveillance 
program unconstitutional. The case went on appeal to the Court of 
Appeals for the Sixth Circuit. The defense was interposed of lack of 
standing, and in a split decision--two to one--the Sixth Circuit 
decided that there was not the requisite standing. Well, standing is a 
very fluid doctrine, and it is used from time to time to avoid deciding 
an issue. Common parlance would say that is a good way to duck a case. 
The dissent in that case was powerful, I think by any fair reading, had 
much more legal authority behind it that there was standing to raise 
this issue.
  Certiorari was sought from the Supreme Court of the United States, 
and they denied cert. As is the custom, they didn't say why. That 
inaction by the Supreme Court--and the Supreme Court has tremendous 
impact by its inaction, contrasted with cases it does decide--that 
leaves the President with the power which the President asserts under 
article II of the Constitution as Commander in Chief, contrasted with 
the authority of Congress under article I to legislate with the Foreign 
Intelligence Surveillance Act. That is a case which we really ought to 
have an answer to one way or another. The Court ought to make a 
decision in a case such as that.
  Another case which illustrates the concession of legislative 
authority to the executive branch by inaction of the Court involves the 
lawsuit brought by survivors of the victims of 9/11 where the 
Government of Saudi Arabia was sued, as were Saudi princes, as was a 
Saudi charity, for financing the 19 Saudis who were among the 20 
terrorists directing the planes which crashed into the Trade Centers in 
New York and in Somerset County in my State, Pennsylvania, and into the 
Pentagon in Virginia. And the evidence there was overwhelming.
  Recently, the Judiciary Committee held a hearing, which I chaired, on 
legislation to cure the problems that were articulated by the Second 
Circuit and by the Solicitor General. But in that case, the Court 
declined to take jurisdiction, denied cert. So here you have the 
Congress of the United States, in a very important piece of 
legislation--the Foreign Sovereign Immunities Act--saying that foreign 
states were not immune for tortuous conduct, like crashing into a 
building.
  As I had alluded to very briefly earlier, the Second Circuit found 
against the survivors of the victims on the grounds that Saudi Arabia 
was not a state which had been designated by the State Department as a 
terrorist state. Well, there is nothing in the legislative enactment 
which requires a state to be on the terrorist list in order to 
establish liability.
  The Solicitor General said the Second Circuit was wrong but in 
opposing a grant of certiorari, came up with a different theory, and 
that was that the acts occurred outside of the United States in 
financing the terrorists. Well, how much more direct impact could 
conduct have than financing terrorists coming to the United States to 
hijack planes and to do what the 9/11 terrorists did? Well, that case 
remains unresolved, and we are looking for a legislative change to deal 
with that case. But here is another illustration where the Court, by 
not deciding a case, shifted a tremendous amount of authority to the 
Federal Government to decide as a matter of foreign policy not to anger 
the Saudis, under the great proposition, under the great legal holding 
of oil, oil, oil. But there we are--more power in the executive, less 
power in the Congress.
  So these are issues which we really need to understand and get 
answers from nominees if we are to maintain the balance in the 
separation of powers, which is a very fundamental point in our system 
of constitutional governance.
  In considering the nomination of Elena Kagan, as I said, concerned 
with maintaining the balance on the Court--and the Court has really 
become an ideological battleground. Chief Justice Roberts, in an 
interview with C-SPAN, recently said: We are not a political branch of 
government. We are not a political branch of government. I will return 
to that in some greater detail in a few moments.
  Richard Posner, Judge Richard Posner, a distinguished judge on the 
Court of Appeals for the Seventh Circuit, in a very noted book on the 
judiciary, devoted an entire chapter, chapter 10--which the title is: 
The Supreme Court Is a Political Court. The Court decides political 
issues. The Court decides political governance, political values, 
political rights, and political power.
  The status of an ideological battleground is illustrated by the 
decision of the Supreme Court of the United States in a case captioned 
Citizens United, which upset 100 years of precedents in permitting 
corporations to pay for political advertising. This is a case which 
came to the Court on a grant of certiorari to examine the McCain-
Feingold Act to decide whether the application of that act was 
constitutional as it applies to a movie about Hillary Clinton. Well, 
that was under the standard of ``as applied.''
  The case was argued in the Supreme Court. Then, sua sponte--the Latin 
expression which means ``on the court's own authority''--after the case 
was argued, the parties were then notified that the Court was going to 
consider the constitutionality of McCain-Feingold facially, which means 
whether it would be unconstitutional in any context. But that is an 
unusual reach by the Court.
  Then, in a 5-to-4 decision, the Supreme Court decided to overrule a 
relatively recent case, the Austin case, and to overrule certain 
portions of McConnell v. the Federal Election Commission. The case was 
noteworthy in two respects. One is, the Court disregarded a 100,000-
page record, which had been amassed in congressional hearings, showing 
the undesirable consequences of money in politics, how it raises the 
skepticism of the American people about the integrity of government and 
raises issues of corruption in government and the collateral issue of 
the appearance of corruption in government.
  The case was especially problemsome from the point of view that Chief 
Justice Roberts and Justice Alito had testified at great length about 
deference to Congress on congressional findings, and all that was 
ignored in the Court's decision. Chief Justice Roberts and Justice 
Alito had testified extensively. Twenty-eight minutes of my first round 
of 30 minutes of the Roberts confirmation hearing was addressed to the 
issue of stare decisis. Chief Justice Roberts, as a nominee, was 
emphatic about respect for stare decisis, observing precedents, as was 
Justice Alito,

[[Page 15097]]

and the stability of the law and, as Chief Justice Roberts said, not 
jolting the system but to have modest decisions.
  In a concurring opinion--only Chief Justice Roberts and Justice Alito 
signed the concurring opinion; the other three Justices in the majority 
did not--but in that concurring opinion was a 180-degree reversal as to 
what both nominees had testified to during their confirmation 
proceedings.
  I have said in discussing this issue in the past that I appreciate 
the difference between answers in a nomination proceeding and what a 
sitting Justice has a responsibility to do on the bench and in deciding 
cases and I do not, in any way, impugn the good faith of Chief Justice 
Roberts and Justice Alito. But from the perspective of a Senator asking 
questions about how nominees are going to approach judicial philosophy 
and judicial ideology, there ought to be some approach which would give 
some greater consideration to that testimony and those commitments made 
to Senators who then vote for their confirmation.
  This issue was taken up by circuit judge Richard Posner, whom I 
quoted earlier on the proposition that the Supreme Court is, in fact, a 
political body and makes political decisions, makes decisions on 
political governance and political values and political rights and 
political power. This is what Judge Posner had to say about the 
decisions of Chief Justice Roberts. The Chief Justice has 
``demonstrated by his judicial votes and opinions that he aspires to 
remake significant areas of constitutional law.'' The ``tension'' 
between what he had said at his confirmation hearing and ``what he is 
doing as a Justice is a blow to Roberts' reputation. . . .''
  The issue of who understands what happens in complex cases such as 
Citizens United--it has a very limited impact. For those who study the 
confirmation testimony closely and for those who study the opinions 
closely, there is an issue raised as to reputation, and I do believe it 
is a fact that Justices, similar to all the rest of us, are concerned 
about their reputations.
  So the issue then is, What can be done to acquaint the public with 
what happens in the Supreme Court of the United States? What is going 
on with the balance of power and the separation of power? What is 
happening with the constitutional responsibility of Senators to ask 
questions, to use that as a basis for confirmation?
  I believe one step which can be taken of real significance would be 
the televising of the Supreme Court. Is it an absolute answer? Well, of 
course not. But Justice Brandeis, in a very famous article written in 
1913, said that sunlight was the best disinfectant, and he analogized 
the disinfectant quality of sunlight with publicity on solving social 
problems and social ills.
  There was an article by Stuart Taylor which appeared in the 
Washington Post, captioned ``Why the justices play politics.'' This, I 
think, is very weighty in the observation of an astute commentator on 
the Supreme Court and what is happening on the precise issues which I 
am raising today about the Court taking over congressional power and 
the Court acting in a political way on the Court's decisions. This is 
what Stuart Taylor, Jr., had to say:

       The key is for the justices to prevent judicial review from 
     degenerating into judicial usurpation. And the only way to do 
     that is to have a healthy sense of their own fallibility and 
     to defer far more often to the elected branches in the many 
     cases in which original meaning is elusive.

  Then, Mr. Taylor comments about nominee Kagan:

       Elena Kagan professed such a modest approach in her 
     confirmation testimony. Yet so did the eight current 
     justices, and once on the court, all eight have voted 
     repeatedly to expand their own powers and to impose policies 
     that they like in the name of constitutional interpretation.

  So that is in line with the title of this article: ``Why the justices 
play politics.''
  Mr. Taylor goes on to say this:

       Why so modest?

  That is, why is the Court so modest?

       Perhaps because the justices know that as long as they stop 
     short of infuriating the public, they can continue to enjoy 
     better approval ratings than Congress and the president even 
     as they usurp those branches' powers.

  This is an interesting test--more even than interesting, it is 
intriguing--the test of infuriating the public. There have been 
substantial efforts made to acquaint the public with the gridlock in 
the Congress of the United States, that we are failing to act on 
matters of enormous importance because of raw, partisan politics. There 
is an effort in the New Yorker magazine, current edition, about what is 
happening in the Congress, which would infuriate anybody who reads it, 
and we are waiting for more of the mainstream press to tell the 
American people how raw the politics are here, how partisan it is, and 
the gigantic wall which separates the two parties here. We call it an 
aisle. Well, it would more accurately be called a wall, taller and 
tougher than the Berlin Wall. That wall has come down.
  But we are undertaking enormous delays on extending unemployment 
compensation, in an economy where people cannot find jobs, and it is a 
matter of being sustained, avoiding eviction from their houses, buying 
groceries for their families. But I think what we have here, 
realistically viewed, is a test of infuriating the public before you 
get some response. But that is a pretty tough job to do, to infuriate 
the public.
  Chief Justice Roberts was interviewed recently by C-SPAN and had this 
to say in elaboration on his contention of the Court is not a political 
body. On that point, Chief Justice Roberts may be right, or Chief 
Justice Roberts may be wrong. Judge Richard Posner and Stuart Taylor 
may be right in specifying political activity in the Court, and the 
observation of many of us is that it is an ideological battleground, a 
political ideological battleground. But this is what Chief Justice 
Roberts had to say on a C-SPAN interview a few months ago:

       I think the most important thing for the public to 
     understand is that we are not a political branch of 
     government. They didn't elect us. If they don't like what 
     we're doing, it's more or less just too bad.

  Well, it is true that ``they didn't elect us'' and that they don't 
have standing to legislate. That is up to the Congress. But I am not 
prepared to accept the statement ``if they don't like what we're doing, 
it's more or less just too bad.'' I am not prepared to accept that in a 
democracy. I am not prepared to accept that when we have the learning 
of Justice Brandeis and know from our own practical experience that 
sunlight is the best disinfectant. Publicity has a tremendous effect on 
the way government operates on all levels, including, I submit, the 
Supreme Court of the United States.
  They made a drastic departure in the New Deal legislation in the 
1930s in the face of overwhelming public opinion. When we have 
observers such as Judge Posner commenting about the impact on the 
reputations of Justices, I think if there were a general understanding 
as to what goes on, there could be an effect on that. We could get more 
out of nominees in the confirmation process, and we could have a 
greater likelihood of having Justices, once confirmed, follow what they 
have said during their confirmation hearings.
  I have pressed this idea of televising the Court for a long time--
more than a decade. I have introduced legislation calling for the Court 
to be televised unless in a specific case there is cause showing why, 
in that one case, there should not be television. The bill has been 
reported out of the Judiciary Committee on a number of occasions and is 
now on the agenda. I have reason to believe we will have a chance to 
vote on the Senate amendment. I have talked to the leadership in the 
House of Representatives and have gotten favorable responses there. The 
Judiciary Committee voted it out recently 13 to 6, so that is more than 
the 2 to 1. I believe there is adequate legal basis for the 
legislation.
  Congress cannot tell the Court how to decide cases, but the Congress 
does have the authority to establish administrative matters in the 
Court. For example, the Congress has the authority to decide how many 
Justices will be on the Court. In response to the restrictive 
interpretations of the Supreme

[[Page 15098]]

Court in the 1930s, President Roosevelt floated a court-packing plan to 
raise the number of Justices to 15. That was defeated, and I think 
wisely so.
  I think the principle of judicial independence is the hallmark of our 
society governed as a rule of law, and I think we have to maintain that 
judicial independence within the existing framework. But I think 
televising the Court would still respect that.
  Just as Congress has the authority to determine how many Justices 
there will be, Congress has the authority to decide what a quorum of 
the Court is, how many members must be present for the Court to act. We 
set that number at six. The Congress sets the date when the Court will 
start its session--on the first Monday in October. The Congress has 
established time limits on judicial decisions. Habeas corpus has been 
delayed tremendously; Congress has that authority. Congress has the 
authority to tell the Court what cases to hear--not how they decide 
them but what cases to hear--illustratively, on McCain-Feingold, part 
of the legislation on the flag burning case. The Congress has the 
authority to establish the jurisdiction of the Supreme Court on 
discretionary matters.
  The Justices are frequently televised. Quite a number of them appear 
on television, on ``60 Minutes.''
  I ask unanimous consent to have printed in the Record a listing of 
situations where Justices have appeared on television.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

          Examples of Televised Public Appearances by Justices

       Justice Scalia appeared on the CBS news program ``60 
     Minutes'' on April 27, 2008, for the entire program.
       Justice Thomas appeared on the CBS news program ``60 
     Minutes'' on September 30, 2007.
       Justice Thomas appeared in a series of interviews with ABC 
     News over four days between October 1 and 4, 2007.
       Justices Breyer and Scalia have engaged in several 
     televised debates, including a debate on December 5, 2006, 
     sponsored by the American Constitution Society.
       Justices O'Connor and Stephen Breyer appeared on ABC News's 
     ``This Week'' on July 6, 2003.
       All of the Justices have sat for television interviews 
     conducted by C-SPAN: J. Alito: Sept. 2, 2009; J. Breyer: June 
     17, 2009; J. Ginsburg: July 1, 2009; J. Kennedy: June 25, 
     2009; C.J. Roberts: June 19, 2009; J. Stevens: June 24, 2009; 
     J. Scalia: June 19, 2009; J. Sotomayor: Sept. 16, 2009; J. 
     Thomas: July 29, 2009.

  Mr. SPECTER. Mr. President, there has been an objection by the Court 
on grounds that it would interfere with the collegial dynamics of the 
Court, that somebody might be reaching for a 30-second sound bite. 
Well, I think that, in the first place, is unlikely and wouldn't be 
very well received and wouldn't be repeated. Even so, the objections 
which have been raised to televising the Court are minimal, de minimis, 
contrasted with the advantages to televising the Court.
  If the Court were televised, there would also be an understanding of 
the limited docket of the Court, and the Court could undertake the 
decision in more cases if the public understood how few cases they 
hear. In 1886, the Supreme Court decided 451 cases. In 1987, a little 
more than two decades ago, the Court issued 146 opinions. In 2006, that 
number was down to 78; in 2007, 67; 2008, 75; 2009, 73. When Chief 
Justice Roberts testified, he said the Court could undertake more 
decisions. He has been the Chief for 5 years and the number is at 73.
  The Court, in its discretionary authority, leaves many circuit splits 
undecided. Most people don't have the foggiest notion of what a circuit 
split is, so for the few people who are watching on C-SPAN 2, a very 
brief explanation. The country is divided up into circuits, different 
courts of appeals. The Third Circuit, for example, has jurisdiction 
over my State, Pennsylvania, as well as New Jersey and Delaware. The 
Second Circuit has jurisdiction over New York and, I believe, Vermont. 
Frequently, the Third Circuit will differ from the Second Circuit. A 
matter arises in Philadelphia governed by different law than arises in 
New York City. An issue arises in the Sixth Circuit in Detroit, there 
is no definitive resolution. People there don't know what the law is. 
The Supreme Court could undertake those decisions. They have sufficient 
time.
  These are matters of very substantial importance. For example, the 
circuit splits are left unresolved by the Court when a Federal agency 
may withhold information in response to a request under the Freedom of 
Information Act on the grounds that it would disclose the agency's 
``internal deliberations.'' The Court has left undecided when a civil 
lawsuit must be dismissed or may be dismissed as involving a state 
secret. Left undecided circuit splits, should national community 
standards or local community standards be applied to Internet obscenity 
cases; left undecided circuit splits, does a constitutional decision 
regarding the exclusionary rule apply retroactively to evidence 
obtained from illegal searches undertaken prior to that constitutional 
decision.
  I ask unanimous consent that a fuller list be printed in the Record 
at the conclusion of my statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. SPECTER. Mr. President, the authority which we are exercising in 
confirming Solicitor General Elena Kagan is a very important 
constitutional authority, and we take it very seriously. During my 
tenure on the 14 nominations which the President has made, we have 
found a pattern which has become the accepted standard of answering 
about as many questions as nominees believe they have to answer in 
order to be confirmed. If you can't get someone like Elena Kagan to 
answer questions after her forceful statement from the University of 
Chicago Law Review criticizing Justice Ginsburg and Justice Breyer for 
stonewalling and criticizing the Senate for not getting information, I 
think that is the standard which is going to prevail. And where you 
have nominees coming into the nominating process and testifying under 
oath about important philosophical underpinnings, ideological 
underpinnings of congressional authority on factfinding and stare 
decisis, and then doing a 180-degree turn, we need to look for some 
response.
  I do not believe requiring the Court to be televised is a denigration 
of their authority. I think that is within the authority of Congress, 
as I have delineated on so many administrative matters such as the size 
of the Court, the quorum, when they convene, and what cases they must 
hear.
  I approach the Court with more than respect. I approach the Court 
with reverence. I have had the privilege of arguing in that Court. I am 
the first to acknowledge--there is no one faster on acknowledging--the 
importance of the Court as the final arbiter under Marbury v. Madison 
and the importance of judicial independence.
  I do not think this idea is on a level with what the Court had to say 
about Congress in the Morrison case, declaring the act protecting women 
against violence as unconstitutional because of our method of 
reasoning. As I said earlier, another polite way of calling us stupid 
or saying we don't know what we are doing--no polite way really to say 
that on method of reasoning. What wisdom accrues from walking across 
Constitution Avenue from the hearing room in the Judiciary Committee or 
what great wisdom lies across the green a few hundred yards to the east 
of this Chamber.
  I do believe television would be a step in the right direction. Would 
it be a cure? No. But when we have someone such as circuit judge 
Richard Posner criticizing a named Chief Justice on reputation, I think 
that would have an ameliorating effect.
  I thank the Chair and yield the floor.

                               Exhibit 1

                       Interesting Circuit Splits

       Can the Attorney General of the United States bypass the 
     notice and comment period requirement of the Administrative 
     Procedure Act in applying the Sex Offender Registration and 
     Notification Act retroactively?
       Do federal district courts have ancillary jurisdiction over 
     expungement of criminal records?
       May jurors consult the Bible during their deliberations in 
     a criminal case and, if so, under what circumstances?
       Must a civil lawsuit predicated on a ``state secret'' be 
     dismissed?

[[Page 15099]]

       May a federal court ``toll'' the statute of limitations in 
     a suit brought against the federal government under the 
     Federal Tort Claims Act if the plaintiff establishes that the 
     government withheld information on which his claim is based?
       Is a defendant convicted of drug trafficking with a gun 
     subject to additional prison time under a penalty-enhancing 
     statute, or is his sentence limited to the period of time 
     provided for in the federal drug-trafficking law?
       When may a federal agency withhold information in response 
     to a FOIA request or court subpoena on the ground that it 
     would disclose the agency's ``internal deliberations''?
       Should national community standards or local community 
     standards be applied in internet obscenity cases?
       Which party has the burden of proof at a competency 
     hearing?
       Does state or federal law governs the inquiry into the 
     enforceability of a forum selection clause when a federal 
     court exercises diversity jurisdiction?
       Does a constitutional decision regarding the exclusionary 
     rule apply retroactively to evidence obtained from illegal 
     searches undertaken prior to that constitutional decision?
       Is pre-litigation notice and opportunity to cure necessary 
     in cases alleging unequal provision of athletic opportunities 
     in violation of Title IX?
       Is a non-violent walkaway escape a violent felony for 
     purposes of the Armed Career Criminal Act?
       Does a defendant's robbery conviction count as a crime of 
     violence, thus classifying the defendant as a career offender 
     under the Sentencing Guidelines?

  The PRESIDING OFFICER. The Senator from Nevada is recognized.
  Mr. ENSIGN. Mr. President, I rise today to address the nomination of 
Solicitor General Elena Kagan to the Supreme Court of the United 
States.
  The nomination of Ms. Kagan has stirred up an old debate in our 
country. There are some that say that our Constitution is outdated and 
the intent of our Founders when drafting it no longer relevant.
  However, I am of the belief that the U.S. Constitution is the very 
foundation of our country and its words and the written intent of our 
Fathers are the cornerstone of our freedoms, our liberty, and our 
protection from radical actions and ideas.
  Alexander Hamilton addressed this very issue when he said that, ``Our 
founders clearly revealed their central purpose was defending 
Americans' rights and liberties against encroachment, particularly by 
an overbearing national government. The Supreme Court's major purpose 
is preventing such overstepping. That requires following the 
Constitution as the highest law of the land in fact as well as on 
paper, because as George Mason put it, `no free government, or the 
blessings of liberty, can be preserved to any people but by frequent . 
. . recurrence to fundamental principles.' If we are to be true to our 
heritage, the coming Supreme Court nomination debate must focus on 
those principles.''
  It is with these words from Alexander Hamilton that I have thoroughly 
considered Ms. Kagan's qualifications and fitness to serve as the next 
Supreme Court justice. And specifically, whether Ms. Kagan will uphold 
the written word of the U.S. Constitution and the intent of our 
Founding Fathers or twist it to fit a favored political outcome.
  I had the privilege of meeting with Solicitor General Kagan a few 
weeks ago and I, like most who met with her, was impressed by her 
intelligence and poise. There is no question that she has a vast 
knowledge of the law which stems from years of working as a Supreme 
Court law clerk, an adviser to President Clinton, dean of Harvard Law 
School, and through her current position as Solicitor General.
  When I had the opportunity to ask Ms. Kagan about her views on the 
Founders' intent of the second amendment, she informed me that although 
she had read much analysis regarding the second amendment, she had 
never studied its history or origin. Certainly, this statement was 
surprising to me, especially given her documented history of hostility 
toward the second amendment.
  This hostility became apparent for the first time as a law clerk for 
Justice Thurgood Marshall when she said, ``I'm not sympathetic'' to an 
individual's argument that the DC handgun ban violated his second 
amendment rights.
  I have been rather vocal on this issue and I have advocated strongly 
against the District of Columbia's denial of this fundamental right for 
law-abiding citizens.
  The case that Ms. Kagan was ``unsympathetic'' toward involved Lee 
Sandidge, an African-American business owner who was arrested and 
convicted in DC for possessing ammunition and an unregistered pistol 
without a license. He faced up to 10 years in prison, but received a 
suspended sentence of probation and $150 fine. Mr. Sandidge's second 
amendment claim that Ms. Kagan cared little for challenged the same 
restrictive DC gun control law that was struck down by the Supreme 
Court in the 2007 Heller decision.
  In this instance, I believe that Ms. Kagan allowed for her personal 
beliefs and emotions to cloud the meaning of the U.S. Constitution, 
since she apparently did not care to look to the Founders' intent or 
cite legal precedent.
  Her lack of sympathy for gun owners and gun rights was again apparent 
during her years at the Clinton White House where she coauthored two 
policy memos in 1998 that advocated for White House events and policy 
announcements on various gun proposals, including ``legislation 
requiring background checks for all secondary market gun purchases,'' a 
``gun tracing initiative,'' and a call for a new gun design ``that can 
only be shot by authorized adults.''
  Ms. Kagan also played a role in an executive order that required all 
Federal law enforcement officers to install locks on their weapons.
  When it comes to the second amendment, I believe that Ms. Kagan shows 
a blatant disregard for the U.S. Constitution, and a feigned ignorance 
for the intent of our founders when crafting this amendment--however, 
this has not deterred her from providing advice to her superiors on an 
issue that she goes to great lengths to nullify.
  Unlike Ms. Kagan, my colleagues and I, along with millions of 
Americans have studied the intent of our founders in regards to the 
second amendment.
  The Founders looked to the writings of prominent philosophers when 
debating the importance of the right to keep and bear arms to protect 
the people of this country from tyranny and from a governing class that 
had a history of shown propensity for oppression. The second amendment 
was drafted to address an issue of trust, protection, and most of all, 
to establish individual rights over the government.
  James Madison wrote in Federalist paper 46 that the Constitution, 
``preserves the advantage of being armed which Americans possess over 
people of almost every other nation . . . where the governments are 
afraid to trust people with arms.''
  St. George Tucker, the first commentator on the Constitution, wrote 
in 1803, that the second amendment was ``the true palladium of 
liberty'' and that, ``the right to self-defence is the first law of 
nature: in most governments it has been the study of rulers to confine 
the right within the narrowest limits possible. Wherever standing 
armies are kept up, and the right of the people to keep and bear arms 
is, under any colour or pretext whatsoever, prohibited, liberty, if not 
already annihilated, is on the brink of destruction.''
  Ms. Kagan has stated, when asked whether she personally believes that 
there was a preexisting right to self-defense before the Constitution, 
she said she ``didn't have a view of what are natural rights 
independent of the Constitution.''
  Ms. Kagan's shocking admission upholds my conclusion that she does 
not believe the second amendment codifies with the beliefs of our 
Founders who fervently believed the right to keep and bear arms was a 
natural right.
  Ms. Kagan's failure to study the history surrounding the second 
amendment is in stark contrast to her emphasis on the importance of 
students studying international law at Harvard Law School. As dean, she 
mandated the study of international law, but made the study of the 
constitution optional. As an American, I find this thoroughly 
insulting.

[[Page 15100]]

  When asked ``What specific subjects or legal trends would you like 
[Harvard] to reflect?'' Kagan responded: ``First and foremost 
international law 
. . . we should be making clear to our students the great importance of 
knowledge about other legal systems throughout the world. For 21st 
century law schools, the future lies in international and comparative 
law, and this is what law schools today ought to be focusing on.''
  Her decision to not educate American law students on the cornerstone 
of American freedom, the U.S. Constitution, allows Harvard law students 
to graduate without ever taking a course in constitutional law. This I 
feel demonstrates her willingness to set aside the core principles of 
our democracy in favor of ``good ideas'' for an outcome favorable to 
her political beliefs.
  In fact, Ms. Kagan need look no farther than the Declaration of 
Independence to understand our founders intent in regards to our second 
amendment when they 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.''
  I am of the belief that our Constitution is what helps to make this 
country the best in the world and it's what stands between the United 
States of America and every other country on Earth.
  Ms. Kagan's penchant for political activism was showcased in her 
treatment of military recruiting during her tenure as dean of the 
Harvard Law School and her decision to ban military recruiters from 
campus over objections to the don't ask, don't tell policy.
  As dean of the Harvard Law School, Ms. Kagan barred the military from 
the campus recruiting office, even as our troops risked their lives in 
two wars overseas that stemmed from the deadliest terror attack on 
American soil, September 11, 2001. She did so in defiance of a Federal 
law, the Solomon Amendment, which requires that the military receive 
``access . . . at least equal'' to that of other employers. In fact, 
Solomon's explicit equal access clause passed this Chamber unanimously 
in 2004, 1 month before Ms. Kagan began blocking recruiters.
  Despite a clear record on this issue, Ms. Kagan testified during her 
hearing that the military had ``full,'' ``excellent,'' and even 
``complete'' access during her tenure as dean. Documents from the 
Pentagon, however, demonstrate that recruiters were ``stonewalled,'' 
and that banning them from the recruitment office was ``tantamount to 
chaining and locking the front door of the law school.'' During this 
contentious period, she filed briefs, spoke at protests, and sent 
campus-wide e-mails attacking the governmental policy.
  Given Ms. Kagan's fierce opposition to the don't ask don't tell law, 
in her hearing for Solicitor General, she was specifically asked 
whether she would be able to set aside her personal political views and 
defend that law. She testified that she would defend the law with 
vigor. However, a review of her record reveals something different.
  As Solicitor General, she chose not to challenge a Ninth Circuit 
ruling that significantly damaged and undermined don't ask don't tell. 
It is my belief that by neglecting to do this, she failed in her duty 
as Solicitor General and violated the pledge that she made to the U.S. 
Senate.
  I wish I could say that her history of activism ended here, but we 
need only look back to her work as an advisor to the Clinton 
administration to see a demonstrated proclivity to inject progressive 
views and an activist agenda into all her work, a trait that I am 
afraid she is unlikely to abandon if confirmed.
  Ms. Kagan's proclivity toward judicial activism is best highlighted 
in her inability to express a limit on the Federal Government's power.
  At her hearing, she was unable to identify a single meaningful limit 
on Federal Government power under the commerce clause. As the Federal 
Government continues to expand both in scope and size, we need Justices 
who recognize and are willing to enforce the limitations the 
Constitution places on the Federal Government. Given that Ms. Kagan 
apparently does not recognize those limitations, it is clear that she 
would not enforce them.
  As a Supreme Court Justice, Ms. Kagan is likely to rule in favor of 
the government as opposed to enforcing the vital role that the Supreme 
Court plays in keeping the overreaching arm of the government in check.
  After thoroughly studying Ms. Kagan's record and after questioning 
her on my many concerns, I feel that I must remind Ms. Kagan on the 
intent of our Founding Fathers when establishing the United States as 
the world's leading democracy and symbol of freedom throughout the 
world:

       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.

  If confirmed as a Supreme Court Justice, I fear that Elena Kagan will 
be unable to set aside her personal beliefs and uphold even these most 
basic tenets of the United States of America. I believe her reign as a 
Supreme Court Justice will lead to the interpretation of international 
law over the U.S. Constitution, will lead to a great assault on the 
second amendment, and will be marred by precedent of court cases rather 
than intent of Framers of the constitution. As the highest Court in the 
land, the Supreme Court plays this vital role in keeping the 
overreaching arm of the Federal Government in check.
  That said, anyone nominated to sit on the bench of this Court must be 
willing to do the same--set aside personal politics and views and defer 
to the Constitution for the good of the country.
  While I am impressed with her intellect and accomplishments, my 
meeting with Ms. Kagan and a review of her record did little to dispel 
my concerns as to whether she will adhere to the Framers' intent of the 
Constitution.
  Ms. Kagan's lack of support for the U.S. military, demonstrated 
hostility toward the second amendment, and her propensity toward 
political activism signaled to me that her role on the Court will be 
one of liberal judicial activism.
  For these reasons, I will respectfully oppose her nomination to the 
U.S. Supreme Court.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Carper). Who seeks recognition? The 
Senator from Alaska.
  Ms. MURKOWSKI. Mr. President, on July 2, following the conclusion of 
the hearings on Elena Kagan's nomination to serve as an Associate 
Justice of the U.S. Supreme Court, I informed my colleagues and my 
constituents in the State of Alaska that I could not support her 
nomination. I decided to express my views at the time in summary form, 
knowing I would get many questions about Ms. Kagan in the course of my 
travels during the Independence Day recess, when I was up in the State.
  Many of the Alaskans I encountered during that trip and in subsequent 
visits around Alaska indicated their concerns about Ms. Kagan's 
qualifications to serve and indicated they shared those same concerns. 
That said, Alaskans are certainly a diverse and an independent people 
who are accustomed to speaking their minds. It is fair to say I have 
also heard from those who strongly support Solicitor General Kagan's 
nomination. I respect both viewpoints. But I am required by our 
Constitution to make an up-or-down decision.
  I regard a Senator's vote to confirm or not to confirm a Supreme 
Court nominee as one of the most important responsibilities bestowed on 
this body by the U.S. Constitution. I believe it is a Senator's 
responsibility to evaluate each nominee on his or her merits, consider 
the record with great reflection, and explain her conclusions to the 
body and to her constituents.
  I come to the floor to expand the thoughts I expressed earlier about 
the Kagan nomination, as well as to offer some observations about the 
composition of the Court as we go forward.
  As I observed in early July, there is no doubt--no doubt in my mind--
that Elena Kagan is a gifted teacher of the

[[Page 15101]]

law. Watching the confirmation hearings, I was impressed with her 
command of the Supreme Court's precedents and her ability to explain 
those precedents in a language nonlawyers can understand.
  In the course of those hearings, Elena Kagan vowed to respect Supreme 
Court precedent. But she offered little insight into the circumstances 
that might lead her to overturn established precedent and even less 
insight into how she would approach those cases when precedent was not 
clearly established.
  Most troubling, Ms. Kagan's responses to the questions posed to her 
in the Judiciary Committee indicated gaps in her understanding of the 
Constitution. Indeed, the most glaring of these gaps involved the right 
to keep and bear arms, guaranteed to law-abiding Americans under the 
second amendment. This is a matter of great significance to my 
constituents in Alaska. So I find myself compelled to discuss it at 
some length.
  There was a colloquy between our colleague, Senator Grassley, and 
Solicitor General Kagan that sticks very clearly in my mind. Senator 
Grassley began his question by observing that the Supreme Court in the 
Heller case concluded that the second amendment involved an individual 
right to possess firearms, not a collective right conditioned by 
participants in a militia.
  Senator Grassley further noted that the Supreme Court ruled in 
McDonald that the individual right recognized in Heller is applied to 
the States through the doctrine of incorporation via the 14th 
amendment.
  Senator Grassley then went on to ask Ms. Kagan whether she personally 
believes that the second amendment includes an individual right to 
possess a firearm.
  Elena Kagan did not answer the question. Her response was:

       I have not had myself the occasion to delve into the 
     history that the courts dealt with in Heller.

  Senator Grassley went back again. He asked straight on:

       Do you believe the second amendment conveys an individual 
     right?

  Once again, Ms. Kagan ducked the question. She said that she lacked 
the wherewithal to grade Heller because the case is based so much on 
history she never had an occasion to look at. This is very similar to 
the comments she expressed to my colleague from Nevada who spoke before 
me.
  I find it difficult to accept that an individual who occupied the 
role of dean of Harvard Law School and Solicitor General of the United 
States would never have had occasion to look at the history underlying 
the second amendment.
  My constituents in Alaska have long understood this right to be 
fundamental, personal in nature, and binding on both the Federal 
Government and the States, just as the courts in Heller and McDonald 
have held. I view our second amendment rights in the same way. Yet 
Elena Kagan evidently has not thought much about the question.
  One has to wonder: Is this just a lack of preparation or does Ms. 
Kagan think the second amendment right is insignificant? Again, one has 
to wonder.
  Ms. Kagan had fair and sufficient warning that she would be 
questioned vigorously about her views on the second amendment. Justice 
Sotomayor had very intense questioning on the same subject just a year 
ago.
  I doubt Dean Kagan would accept an answer: Sorry, I am not prepared 
to answer the question, from one of her Harvard law students if posed 
the same question Senator Grassley asked.
  With all due respect for the nominee, I am not prepared to accept 
this kind of answer from a prospective Justice of the U.S. Supreme 
Court. To put it perhaps a bit more bluntly, I would have expected that 
a constitutional law expert of Ms. Kagan's stature would have devoted 
some serious intellectual attention to that question at some point in 
her career. Truthfully, I cannot be sure she does not hold strong 
personal views about the second amendment--views that she is unwilling 
to express because they might pose an impediment to her confirmation. 
This is, by no means, mere speculation.
  While serving as a law clerk to Justice Thurgood Marshall in 1987, 
Ms. Kagan had an opportunity to comment on a petition for certiorari 
filed by a District of Columbia resident who was charged with the 
possession of an unregistered firearm. The petitioner asked the Supreme 
Court whether the DC gun control law violated his second amendment 
rights.
  Ms. Kagan dismissed his argument. In a note devoid of any legal 
analysis, she simply told Justice Marshall: ``I am not sympathetic.'' 
Not sympathetic suggests some knowledge of the second amendment. If Ms. 
Kagan were uncertain whether she knew enough about the second amendment 
to make such a recommendation to Justice Marshall, perhaps she might 
have done more research.
  One is also left to wonder whether Solicitor General Kagan was 
unsympathetic to the view that the second amendment applies to the 
States when the Justice Department decided it would not file a brief in 
the McDonald case. We may never know the answer to this question 
because the deliberations of the Solicitor General's Office are 
privileged.
  The conclusion I draw from all this is that Ms. Kagan is, at best, 
uninterested in the second amendment at this point in her career. At 
worst, she is unsympathetic to the millions of Americans who, similar 
to this Senator, believe the second amendment is one of the most 
important of our constitutional liberties. On this basis alone, I 
cannot support her lifetime appointment to the highest Court in the 
land.
  But this is not the only basis on which I find I must vote against 
the nominee. If confirmed to serve on the Supreme Court, Elena Kagan 
will be one of the least experienced Supreme Court Justices in our 
Nation's history. It is often observed that one need not have judging 
experience to sit on the Supreme Court. But all the Supreme Court 
Justices who did not have judging experience had extensive courtroom 
litigation experience, and Elena Kagan has neither. While it is true 
she spent a brief period of time as a junior associate in a prestigious 
Washington law firm, she has spent most of her professional career as a 
law professor, a university administrator, and as a political appointee 
focused on matters of public policy.
  Ms. Kagan's extensive experience as a policy adviser, when compared 
with her sparse experience as a litigator, should concern all of us.
  During her confirmation hearings, Ms. Kagan was asked repeatedly 
whether she could set aside her interest and experience in matters of 
public policy and refrain from legislating from the bench. She said she 
could. Time will tell whether the benefit of the doubt is justified. 
However, Ms. Kagan's answer to questions concerning her willingness to 
defer to unelected bureaucrats on questions of environmental law is 
quite troubling to me. History demonstrates that agencies at times are 
quite activist in interpreting the gaps Congress intended them to fill 
through regulations. It is well known throughout this body that I do 
not believe Congress ever intended for the EPA to set climate policy 
through Clean Air Act regulations.
  On two occasions before the Judiciary Committee, Ms. Kagan expressed 
the view that it is legitimate for courts to give great deference to 
Federal agencies as they interpret congressional mandates.
  I understand it is settled precedent for Federal courts to defer to 
administrative agencies in appropriate cases. However, I also think 
this administration's activism demands a more skeptical look at agency 
rulemaking exercises. Ms. Kagan, on the other hand, enthusiastically 
endorsed the position that the decisions of unelected bureaucrats 
deserve great deference because Federal agencies have expertise and are 
accountable to the elected Executive. I think this approach will 
continue to diminish the role of Congress in lawmaking and will result 
in less accountability to the electorate, not more, as Ms. Kagan 
suggests.
  I am also concerned about the deference that a Justice Kagan might 
give to international law in interpreting the Constitution and the laws 
of the

[[Page 15102]]

United States. Perhaps there is a limited role for the consideration of 
international or foreign law when the issues posed in the case 
unavoidably turn on the interpretation of a treaty or a foreign law. 
But unlike Ms. Kagan, I would not think that a Federal judge at any 
level should cite foreign and international law in their decision 
simply because the judge is open to ``good ideas wherever they may come 
from.''
  When the Senate inquires as to whether a nominee is qualified for the 
Court, it is asking a very specific question: Does the nominee 
understand and is she prepared to assume the role of an impartial judge 
in our constitutional system?
  I have reluctantly come to the conclusion that Elena Kagan does not 
rise to this standard. During her confirmation hearings, Ms. Kagan 
exhibited charm and wit, even as she weaved her way through the serious 
questions that were put before her. I would have preferred a bit less 
cleverness and a lot more serious reflection.
  As I reflect back upon the record before me, as I think about the way 
Ms. Kagan answered the second amendment questions posed to her, her 
lack of substantive legal experience, her comfort with the judgments of 
unelected bureaucrats, her acceptance of the use of international law 
as persuasive authority in U.S. court decisions, I am not comfortable 
with this nominee.
  I understand others of my colleagues may not share this view and that 
conventional wisdom holds that Elena Kagan will be confirmed to the 
Supreme Court. I would like to close with a few observations about the 
composition of the Court going forward.
  Ms. Kagan, similar to this administration's last nominee, Justice 
Sotomayor, is a native of New York City. Although she spent a portion 
of her career in Chicago, most of her career has been spent inside the 
beltway of Washington, DC, and Cambridge, MA.
  If Elena Kagan is confirmed, six of the nine Supreme Court Justices 
will be from the Northeast United States, and only 3 law schools of the 
199 law schools accredited by the American Bar Association will be 
represented on the High Court.
  Our colleague, Senator Feingold, took note of this during the 
confirmation hearings. He made reference to a question he received from 
one of his constituents in a townhall meeting. That constituent asked 
why nominees to the Supreme Court always seem to be from the east coast 
when we have plenty of fine candidates in the Midwest. Senator Feingold 
followed up by asking Ms. Kagan this question:

       How will you strive to understand the effects of the 
     Supreme Court's decisions on the lives of millions of 
     Americans who don't live on the east coast or in our biggest 
     cities?

  That same question is on my mind today, as it was last summer when I 
spoke on the nomination of Justice Sotomayor. I welcome the fact that 
this administration has substantially increased the representation of 
women on the High Court. Yet it is of greater significance to me that 
the administration has not increased the representation of people from 
the West or from rural backgrounds on the Court. I would suggest that 
given the composition of the Supreme Court at this point in our 
history, it is important for the Justices to venture beyond the bench 
and the beltway. It is important that they get to know how Americans 
with different backgrounds than theirs think about their country. And I 
might suggest that they come and visit us in Alaska.
  If Elena Kagan is confirmed to the Supreme Court, as I understand she 
likely will be, I wish her well in the discharge of her crucial duties. 
The liberties we treasure dearly will depend on her wise and thoughtful 
judgments.
  With that, Mr. President, I thank the Chair, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. CHAMBLISS. Mr. President, I rise today to discuss the pending 
nomination of Solicitor General Elena Kagan to be an Associate Justice 
on the U.S. Supreme Court.
  The constitutional role of the Senate in the confirmation process of 
Federal judicial nominees is to provide for ``advice and consent,'' and 
it is up to each individual Senator to determine what he believes that 
phrase means. As I have had an opportunity to participate in this 
process on several occasions, I have discovered this is more of an art 
than a science.
  I believe there should be some level of deference granted to the 
President's nominees. Elections do matter, and the President has the 
constitutional duty to put forward nominees whom he would like to serve 
on the Federal judiciary. However, when the President nominates an 
individual whose record, in the eyes of some Senators, proves to be 
disqualifying, then it is incumbent upon those Senators to oppose that 
nominee.
  Several weeks ago, Ms. Kagan was granted an opportunity to sit before 
the Judiciary Committee and respond to her critics and clarify her 
seemingly controversial positions. Years before she herself would face 
the requisite questioning of a confirmation hearing, Ms. Kagan 
criticized the confirmation process as lacking ``seriousness and 
substance.'' This is a criticism based on the notion that recent court 
nominees believe the surest path to confirmation is by providing 
milquetoast, evasive answers to any question involving a controversial 
topic. In this instance, Ms. Kagan chose to emulate those whom she had 
once criticized.
  Through many hours of questioning regarding her past statements, 
positions, and actions, her answers proved evasive and unhelpful, and 
with many portions of her record having not been adequately addressed, 
I am left with far too many doubts to simply presume the President's 
nominee should be confirmed.
  There is little doubt Ms. Kagan is intelligent and accomplished. She 
has excelled in both professional and academic pursuits. However, it is 
important to consider that many of her accomplishments have taken place 
in overtly political arenas and have involved extremely controversial 
issues. Many of the controversial positions she advocated in the past 
will almost certainly be litigated before the Supreme Court. It is, 
therefore, incumbent upon her to show us she will leave her role as an 
activist and advocate behind when assuming a position on the bench. 
Again, this is an area where her responses before the Judiciary 
Committee were found lacking.
  I believe any judge who sits on the Nation's highest Court must 
understand that the correct venue for making policy is here in the 
legislative branch. After a thorough review of her record, I am simply 
not convinced Ms. Kagan will exercise that requisite restraint. While 
there are numerous issues I find troublesome in her record, there are a 
few I would like to focus on today.
  I am especially concerned about her discriminatory actions against 
military recruiters--in clear violation of Federal law and which was 
ruled against unanimously by the Supreme Court--while she was the dean 
of Harvard Law School. This was an act of defiance designed to protest 
the military's don't ask, don't tell policy. It has been argued that 
this was simply a misunderstanding or that Ms. Kagan made a good-faith 
attempt to apply the law as she saw fit. I believe her actions show a 
dangerous hostility toward the military and a troubling disregard for 
duly-enacted statutes with which she disagrees.
  Another issue where I remain concerned is on the topic of abortion. 
While not having a litmus test here and while I never anticipated this 
President would nominate someone who shares my pro-life views, I could 
not imagine him nominating someone with the extreme views Ms. Kagan's 
record indicates. This is not just a pro-life versus pro-choice dilemma 
for me. There is substantial evidence from her time clerking for 
Justice Thurgood Marshall and from her time in the Clinton White House 
that demonstrates an alarming agenda she has on the issue of abortion.
  While clerking for the Supreme Court, Ms. Kagan was tasked with 
reviewing a lower court ruling that had found that prison inmates have 
a constitutional right to taxpayer-funded abortions. While she 
concluded that

[[Page 15103]]

the lower court ruling had gone ``too far,'' she also described the 
decision as ``well-intentioned.'' While there may be substantial 
political disagreement on the topic of abortion, it is hard for me to 
reason that any effort to further the idea of taxpayer-funded 
abortions, particularly for prisoners, is ``well-intentioned.''
  Further, when she served as senior advisor to then-President Bill 
Clinton, she was a key player in the White House efforts to keep 
partial-birth abortion--an abhorrent practice that was finally banned 
in 2003--from being outlawed by the Congress. Documents seem to show 
extensive efforts to prevent any restrictions being placed upon the 
procedure. In fact, it appears Ms. Kagan actually went so far as to 
participate in the redrafting of a report from a medical group--the 
American College of Obstetricians and Gynecologists--on the practice 
that served to dilute the findings of the report and bolster her 
position of not restricting the procedure. These efforts appear to show 
a position on life-related issues that is well outside the view of 
mainstream Americans and mainstream legal thought.
  Such views are not limited to the topic of abortion. She has 
demonstrated hostility toward the second amendment and gun rights 
during her past tenures in the judicial and executive branches.
  Again while serving as a Supreme Court clerk, she was tasked with 
writing a memo on the case of a man who had petitioned the Court, 
claiming the District of Columbia's handgun ban was unconstitutional 
because it deprived him of his second amendment right. Striking an 
interestingly personal note, Ms. Kagan wrote: ``I am not sympathetic.'' 
It is common knowledge that a similar challenge to the District's 
handgun ban was successfully considered by the Supreme Court in 2008. 
What we do not know is why Ms. Kagan did not believe a similar 
challenge brought in 1987 was worthy of consideration before the Court.
  Documents made available from the Clinton Library show she was a key 
player in that administration's gun control efforts. She was a key 
advocate for multiple gun control proposals and even authored multiple 
Executive orders that placed restrictions on gun owner rights.
  Ms. Kagan is a unique nominee for the Supreme Court, as she has no 
judicial experience. The last time we confirmed a Justice to sit on the 
Court without earlier having served as a judge was nearly 40 years ago.
  While a lack of judicial experience should not be disqualifying for a 
Supreme Court nominee, it does increase the necessity for that nominee 
to be forthcoming and open during their confirmation hearings. With no 
prior judicial record to view, Senators are left with little guidance 
as to how a nominee will act once they become a Supreme Court Justice. 
This is where we would hope the nominee could fill in the gaps. 
Instead, in Ms. Kagan's case, we are left to look to the past and at 
her records, and we are forced to make an overwhelmingly important 
decision with significant questions unanswered.
  I remain concerned that Ms. Kagan will carry the political agenda 
that is evident in her past to the Supreme Court. Many of her views are 
clearly outside those of mainstream America, and therefore I will vote 
against her nomination to the Supreme Court.
  I will close by saying that all of us, as Members of this body, 
receive input from our constituents, and anytime there is a significant 
or controversial issue before the Senate, the volume of those 
statements from our constituents increases. In the case of Ms. Kagan, 
it has been extremely unusual and extremely interesting. I have had one 
phone call and four e-mails from Georgians in support of Ms. Kagan. I 
have had thousands of phone calls and e-mails in opposition to her 
nomination. That is very unusual, and it is an indication of why the 
polls nationwide are showing that her approval for a Supreme Court 
nominee is so low.
  Mr. President, with that, I yield the floor.
  The PRESIDING OFFICER. The Senator from South Dakota.
  Mr. THUNE. Mr. President, I rise today to speak about Solicitor 
General Elena Kagan's nomination to the Supreme Court of the United 
States.
  As Members of this body are well aware, there is no other matter 
considered by the Senate which has such a profound impact on the 
constitutional landscape of our country than a lifetime appointment to 
the Supreme Court of the United States. When reviewing any nomination, 
I believe the Senate should be thorough, fair, and extensively cover a 
nominee's background, record, and ability to apply the Constitution and 
other laws as written.
  To quote then-Senator Obama:

       There are some that believe that the President, having won 
     the election, should have complete authority to appoint his 
     nominee and the Senate should only examine whether the 
     Justice is intellectually capable and an all-round good guy; 
     that once you get beyond intellect and personal character, 
     there should be no further question as to whether the judge 
     should be confirmed.

  He went on to say:

       I disagree with this view. I believe firmly that the 
     Constitution calls for the Senate to advise and consent. I 
     believe it calls for meaningful advice and consent, and that 
     includes an examination of a judge's philosophy, ideology, 
     and record.

  I also believe the Senate's constitutional duty of advice and consent 
plays one of the most important rules in protecting the Constitution 
and an individual's constitutional rights. While nominees should not be 
rejected based on their personal or political ideology, the Senate must 
determine whether they are prepared to put those things aside when they 
assume the bench. Our country deserves a Supreme Court nominee who will 
judge cases on the constitutional bedrock rule of law, not on their own 
personal feelings or a desire to legislate from the bench.
  After reviewing Ms. Kagan's record, her testimony at the confirmation 
hearings, and having met with her personally, I am unable to support 
her confirmation.
  As many in this body have already noted, Ms. Kagan has no judicial 
experience and virtually no experience with the practice of law. Before 
being nominated by President Obama to be Associate Justice on the U.S. 
Supreme Court, Ms. Kagan had never tried a case to verdict or argued an 
appellate case. While judicial experience is not a prerequisite for 
serving on the Supreme Court, a record on the bench can provide 
important evidence that an individual understands that the role of a 
judge is to impartially apply the law.
  Justices who have not previously served as a judge typically have 
deep experience in the courtroom as practical lawyers. That type of 
experience can also inform how an individual might approach serving on 
the bench. Ms. Kagan's resume and experience offer no such evidence. 
She has spent almost her entire career either in partisan staff 
positions or in academia.
  Throughout, she seems to have been a forceful advocate for liberal 
positions. This consistently liberal world view started early. She once 
wrote: ``Where I grew up--on Manhattan's Upper West Side--nobody ever 
admitted to voting for Republicans.'' And when referring to the 
politicians in her neighborhood, she wrote they were ``real Democrats, 
not the closet Republicans that one sees so often these days, but men 
and women committed to liberal principles and motivated by the ideal of 
an affirmative and compassionate government.''
  At Princeton, Ms. Kagan wrote a thesis lamenting the decline of the 
socialist movement in America and later at Oxford, in another paper, 
supported the activist Warren Court who ``time and time again . . . 
asserted its right to do no less than lead the nation.''
  Her non-academic career is filled with purely partisan staff 
positions: the Michael Dukakis Presidential campaign, special counsel 
to Senate Judiciary Committee Democrats, and domestic policy aide to 
President Clinton.
  Even both of her clerkships were for strongly liberal judges: Judge 
Abner Mikva of the DC Circuit Court of Appeals and Justice Thurgood 
Marshall.
  There is nothing wrong, of course, about having strong political 
views. The question before the Senate is whether Ms. Kagan is the type 
of person who can set aside those views when she puts on the black robe 
of a judge.

[[Page 15104]]

  Unfortunately, her record shows that when she has found an objective 
reading of the law, or even medical science, that conflicted with her 
political goals, Ms. Kagan would choose her political goals.
  A good example of this was when she led efforts to keep the brutal 
practice of partial-birth abortion legal, while serving as an adviser 
to President Clinton.
  While there are many different opinions on abortion policy, an 
overwhelming majority of Americans believe that the gruesome procedure 
is one that is not acceptable and in fact federal law bans this 
practice with the exception of saving the mother's life.
  After President Clinton vetoed Congress's first attempt at a ban and 
Congress was again debating the procedure, Ms. Kagan urged the 
President to support an alternative she believed was unconstitutional.
  Additionally, when she was confronted with a draft scientific 
statement from a medical association that would undermine her preferred 
policy, she decided to rewrite the statement so that it aligned more 
with her preferred policy goals, as opposed to the association's 
medical judgment.
  At her hearing Ms. Kagan confirmed she had no medical training when 
she rewrote their statement, but said she was merely helping the 
medical association more accurately state its own medical views.
  Unfortunately, medical experts disagree with her assertion.
  Former Surgeon General C. Everett Koop has said that ``no published 
medical data supported her amendment in 1997, and none supports it 
today.''
  Further, he believes Ms. Kagan's rewriting of the opinion was in fact 
``unethical, and it is disgraceful, especially for one who would be 
tasked with being a measured and fair minded judge.''
  Ms. Kagan has even been unable to separate her partisan political 
viewpoint from her time in academia, most notably her time as dean of 
the Harvard Law School when dealing with military recruiters.
  While dean, Ms. Kagan was confronted with the Federal law requiring 
schools receiving Federal funds to give equal access to military 
recruiters.
  Instead of requiring Harvard Law School to comply with the plain 
reading of the law, she continued to deny the military access to 
Harvard's on-campus recruiting program, while accepting Federal funds.
  She even signed on to an amicus brief to the Supreme Court which 
argued that noncompliance was in fact compliance.
  This argument was so flawed, and based purely on her personal 
opposition to the law enacted by President Clinton and a Democratic 
Congress, that the Supreme Court unanimously rejected it and said her 
construction was ``clearly not what Congress intended.''
  As Solicitor General, when faced with the proposition of defending 
the federally enacted don't ask, don't tell policy after the liberal 
Ninth Circuit Court of Appeals issued a decision against the policy and 
required a costly trial, Ms. Kagan again chose to follow her personal 
beliefs and allowed for the trial, which is unfavorable to the military 
and current law, to go forward.
  At her confirmation hearings, when asked about this decision, she 
said she allowed the trial to go forward because it would allow for the 
development of a fuller record in support of the government's best 
interest.
  The problem is that the district court records clearly contradict 
this position.
  According to the plaintiff's lawyers in this case, Ms. Kagan herself 
told them ``loud and clear'' that further discovery would be bad for 
the government's interests.
  It is clear to me that Ms. Kagan considers herself a ``real 
Democrat'' committed to liberal principles and has, at no time, shown 
an ability to separate her personal beliefs from the job at hand.
  Again, practical judicial and courtroom experience is not necessary, 
but what is critical is the ability to serve with impartiality.
  Unfortunately, I have nothing but Ms. Kagan's word to indicate that 
she will be able to do so, nothing to show that she can apply the law 
to the facts and not her ideology to the law.
  At this time in our Nation's history, when the size of government has 
exploded and spending is out of control, we need more than her word.
  We need concrete evidence that she will be more than a politically 
motivated ideologue on our highest Court.
  We need a Supreme Court Justice that is willing to apply the 
constitutional principles of a limited government with limited powers.
  We need a Supreme Court Justice that does not believe Congress has 
the right to pass overreaching laws requiring Americans to eat three 
fruits and three vegetables a day, something she suggested at her 
hearing Congress has the power to do.
  When pushed on the outer limits of federal power, Ms. Kagan said ``I 
would go back, I think, to Oliver Wendell Holmes on this. He . . . 
hated a lot of the legislation that was being enacted during those 
years, but insisted that, if the people wanted it, it was their right 
to go hang themselves.''
  For our system of government to work as intended by the Framers, each 
branch of government must do its job.
  It is the job of the courts to apply the law, including the 
constitutional limitations on Federal power.
  When Ms. Kagan says that the people have ``the right to go hang 
themselves,'' she is suggesting that the Supreme Court should not do 
its job, that it should let Congress claim whatever power it wants.
  That is not what the Constitution says and it is not what is in our 
Nation's ultimate interest.
  Freedom and limited government must endure; they must not be cast 
aside because a temporary electoral majority finds them inconvenient.
  Our Founders intended for our Supreme Court Justices to be more than 
a rubberstamp to a particular ideology, administration, or political 
party.
  I cannot trust that Ms. Kagan will be more than this, and 
consequently am left with no other choice than to oppose her 
confirmation.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Casey). The Senator from Mississippi.
  Mr. COCHRAN. Mr. President, as the Senate considers the nomination of 
Solicitor General Elena Kagan to be an Associate Justice on the United 
States Supreme Court, I want to thank Senators Leahy and Sessions for 
their work in the Judiciary Committee on this nomination. The hearings 
were informative and respectful, and they produced a hearing record 
that gives all Senators a better understanding of the nominee's 
background.
  She graduated with academic honors from Princeton University and 
Harvard Law School. She clerked for Supreme Court Justice Thurgood 
Marshall, served as a White House policy advisor for the Clinton 
administration, and as dean of Harvard Law School. Last year, on March 
19, she was confirmed by the Senate as U.S. Solicitor General.
  She has not had much experience as a practicing lawyer, and she has 
had no experience as a judge. Her lack of legal and judicial experience 
is not a disqualification, but it does make our job of evaluating this 
nominee a bit different. We should ask ourselves whether Elena Kagan 
will perform the duties of a Supreme Court Justice with the requisite 
fairness, restraint, and respect for settled precedent under the laws 
and constitution of the United States.
  After reviewing the record and her testimony, I believe serious 
questions about her respect for precedent have not been answered. 
General Kagan has a history of political advocacy, and she has not 
shown that she appreciates the critical distinction between political 
advocacy and neutral judicial decisionmaking.
  As an example, General Kagan's prior work suggests that she would not 
protect an individual's constitutional right to bear arms. As a policy 
advisor to President Clinton, Kagan promoted several gun control 
proposals, including background checks for all gun purchases in the 
secondary market, a gun tracing initiative, and giving law enforcement 
the ability to retain background check information from lawful

[[Page 15105]]

gun sales. She also drafted executive orders to restrict the 
importation of semiautomatic rifles and to require all Federal law 
enforcement officers to install locks on their weapons.
  More recently, as Solicitor General, Ms. Kagan refused to submit a 
brief to the Supreme Court in support of the petitioner in the McDonald 
v. Chicago case. In June of this year, the Supreme Court ruled in favor 
of the McDonald petitioner, holding that the second amendment right to 
bear arms is binding on the States. Notably, McDonald was a 5-to-4 
decision. It is the second Supreme Court decision in recent years to 
affirm the right to bear arms by a narrow, 5-to-4 majority. When asked 
whether she agrees with the four dissenting Justices in these two 
cases, General Kagan repeatedly declined to answer the question.
  I am concerned that General Kagan is not committed to observing 
binding precedent in the area of second amendment rights. If she is 
confirmed to the Supreme Court, she could overturn the closely decided 
holdings of these recent cases.
  General Kagan's record on military recruiting at Harvard Law School 
also is troubling to me. As dean of Harvard Law School, she disallowed 
military recruiting on campus during a time of war. Her actions were in 
violation of Federal law that requires schools accepting Federal funds 
to allow military recruiters access to campus. As justification for her 
actions, she referred to the military's ``don't ask, don't tell'' 
policy as a ``moral injustice of the first order,'' and she reaffirmed 
those views during her confirmation hearings. When she openly defied 
Federal law, she emailed the Harvard Law community to say she ``hoped'' 
the Federal Government ``would choose not to enforce'' the law. The 
Supreme Court later ruled unanimously that Harvard was, in fact, in 
violation of Federal law.
  What is even more troubling is that Kagan was not candid about this 
incident during her recent confirmation hearings. When asked about this 
issue, she claimed that Harvard Law School was ``never out of 
compliance with the law.'' That is a quote from the record--``never out 
of compliance with the law.'' She also said that the military had 
``equally effective substitute'' methods for recruiting students from 
Harvard and had ``full and good access'' to students during this time.
  Her assertions are belied by several contemporaneous documents from 
military recruiters, showing that they encountered severe impediments 
to recruiting Harvard students. Internal Pentagon documents indicate 
that under Dean Kagan, ``[t]he Army was stonewalled at Harvard.'' The 
chief of recruiting for the Air Force's Judge Advocate General Corps 
wrote that ``Harvard is playing games.'' That's in quotes: `` Harvard 
playing games.'' And an Air Force recruiter wrote to Pentagon officials 
saying that, ``[w]ithout the support of the Career Services Office [at 
Harvard], we are relegated to wandering the halls in hopes that someone 
will stop and talk to us.''
  I believe that the nominee's discriminatory treatment of military 
recruiters was both contrary to law and a disservice to the military 
during a time that America was at war. Her recent testimony that she 
acted within the law and that the military had equal access to students 
is less than candid and is directly contradicted by a unanimous Supreme 
Court ruling.
  It is the responsibility of the Senate to make certain that those who 
are confirmed to the Supreme Court are not only qualified by reason of 
experience and training, but also are fully committed to upholding the 
rule of law. I cannot support Ms. Kagan's nomination to a lifetime 
appointment on the Supreme Court, based on the facts I have just 
described.
  Ms. Kagan has a history of openly defying established Federal law and 
of being hostile to certain individual rights guaranteed by our 
constitution. Her recent hearing testimony did not show that she is 
prepared to relinquish the role of political advocate and to take 
seriously the oath to ``faithfully and impartially'' uphold the 
constitution and laws of the United States.
  For these reasons, I cannot support her nomination.
  The PRESIDING OFFICER (Mr. Begich.) The Senator from Maine.
  Ms. COLLINS. Mr. President, I rise today to discuss the nomination of 
Elena Kagan to be an Associate Justice of the U.S. Supreme Court. The 
responsibilities of a Supreme Court Justice are weighty indeed. It is 
his or her task to interpret the Constitution, to protect our cherished 
rights, and to enforce the laws passed by Congress.
  Justices entrusted with lifetime appointments also must avoid the 
temptation to usurp the legislative authority of the Congress or the 
executive authority of the President. As Chief Justice John Marshall 
famously wrote in the 1803 decision, Marbury v. Madison, the Court must 
``say what the law is.'' That is, after all, the appropriate role of 
the judiciary. For a judge to do more would undermine the 
constitutional foundation of the separate branches of government.
  Given this backdrop, disputes regarding the scope of the Senate's 
power of advice and consent are not uncommon, nor unexpected whenever a 
President puts forward a Supreme Court nominee for our consideration. 
More than 215 years after the Senate rejected President George 
Washington's nomination of John Rutledge to serve on the Supreme Court, 
Senators continue to grapple with the criteria to use to evaluate 
Supreme Court nominees and the degree of deference to accord the 
President.
  The Constitution, after all, pronounces no specific qualifications 
for Supreme Court Justices. It does not require that a Justice possess 
judicial experience nor even be an attorney. The absence of such 
requirements in the Constitution allows the Court to be comprised of 
people from different backgrounds, but in carrying out our advice and 
consent role, the Senate must ensure that judicial nominees have 
qualities befitting the post.
  Senators must examine each nominee's competence and expertise in the 
law, judicial temperament, and integrity as demonstrated throughout his 
or her professional career. Determining a nominee's fitness to serve a 
lifetime appointment to the Nation's highest Court is one of the most 
critical and consequential responsibilities any Senator faces.
  In considering judicial nominees, I carefully weigh their 
qualifications, competence, professional integrity, judicial 
temperament, and philosophy. I believe it is also critical for nominees 
to have a judicial philosophy that is devoid of prejudgment, 
partisanship, and preference. Only then will the decisions handed down 
from the bench be impartial and consistent with legal precedents and 
the constitutional foundations of our democratic system.
  I have applied these standards to Elena Kagan. Having analyzed her 
record, questioned her personally, and reviewed the Judiciary 
Committee's hearings, I have concluded that Ms. Kagan should be 
confirmed to our Nation's highest Court.
  The American Bar Association's Standing Committee on the Federal 
Judiciary has unanimously rated Ms. Kagan as ``well qualified.'' Ms. 
Kagan's remarkable legal and academic career demonstrates amply her 
intellectual capacity to serve on the Court. Her writings, testimony, 
and my discussions with her all demonstrate not only a sweeping 
knowledge of the law, but also a love for the law, a passion for 
judicial reasoning.
  Ms. Kagan reflected the judicial temperament and philosophy I am 
seeking in nominees when she said during her testimony, ``I will listen 
hard to every party before the court and to each of my colleagues. . . 
.And I will do my best to consider every case impartially, modestly, 
with commitment to principle and in accordance with law.''
  In writing in support of Ms. Kagan, former court of appeals nominee 
Miguel Estrada said the following:

       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. If such a person who has 
     demonstrated great intellect, high accomplishments and an 
     upright life, is not easily

[[Page 15106]]

     confirmable, I fear we will have reached a point where no 
     capable person will readily accept a nomination for judicial 
     service.

  As many of my colleagues will recall, Mr. Estrada's own nomination to 
the U.S. Court of Appeals for the District of Columbia was the first 
appellate court nomination in history to be successfully derailed by a 
filibuster, even though a majority of Senators, including myself, 
supported his nomination. That was truly unfair.
  With that experience as a guide, I take Mr. Estrada's endorsement of 
Ms. Kagan to heart, and I agree that the Senate must put aside 
partisanship, must avoid political considerations, and must evaluate 
Court nominees with great care and with great fairness. We must not do 
to Ms. Kagan what, unfortunately, many Members on the other side of the 
aisle did to Mr. Estrada, despite his qualifications.
  To be clear, in her previous posts, Ms. Kagan has taken positions 
with which I disagree. It appears that her personal opinion on gun 
rights is at odds with my own. But, nevertheless, Ms. Kagan indicated 
in her testimony before the Judiciary Committee that she would follow 
the precedent established in the Heller and the McDonald cases, 
describing those decisions as settled law. These cases clearly 
establish that the right to bear arms is an individual right guaranteed 
by the Constitution.
  I believe Ms. Kagan will respect the precedent established in these 
two important cases. Ms. Kagan's responses on several issues indicate 
that she appears to understand and embrace judicial restraint and the 
limits of when courts should and should not intercede in matters.
  She rightly deferred on several issues as policy questions more 
appropriately resolved by Congress and the executive. Based on my 
review of Ms. Kagan's record, my assessment of her character, and my 
belief in her promise to adhere to precedent, Ms. Kagan warrants 
confirmation to our Nation's highest Court. She possesses the 
intellect, experience, temperament, integrity, and philosophy to serve 
our country honorably as an Associate Justice of the U.S. Supreme 
Court.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, I am very pleased to be here to speak in 
favor of Elena Kagan's nomination to the Supreme Court. Over the course 
of our Nation's history there have been 111 Justices of the U.S. 
Supreme Court. Only three of those have been women. They are 
outstanding women: Sandra Day O'Connor, Ruth Bader Ginsberg, and Sonia 
Sotomayor. There have never been more than two women serving on the 
Supreme Court at the same time.
  But this week, Elena Kagan is poised to rewrite that history and set 
a new highwater mark for our country. My meeting with her is one that I 
will always remember. I will also remember my meeting with Justice 
Sotomayor.
  We covered a lot of ground. Of course, it was generalized 
conversation because I cannot really ask how an individual will vote on 
a certain case. I asked her about privacy rights. I asked her about 
individual rights. I asked her how she felt about stare decisis.
  I believe she was very strong in her view that there are precedents 
that have been set, that she would not use any type of agenda other 
than the Constitution of the United States to decide the cases that 
will come before her. When she is confirmed, we will have three 
incredibly talented women serving on the Supreme Court at the same time 
for the very first time in our country's history.
  Why is that important? Of course, the most important thing is to have 
the best legal minds. But it is also important to have the diversity 
that reflects our Nation, and we know more than half our people are 
women, and the reach of the Court is enormous. It reaches to every 
citizen. I think it is important we begin to see more women on the 
Court who, of course, are as qualified as Elena Kagan.
  She has broken barriers throughout her career. She was the first 
female dean of Harvard Law School. She is our Nation's first female 
Solicitor General. We are so fortunate to have a nominee who is as 
bright and respected and as committed to equality and justice for all 
Americans as Elena Kagan. I congratulate the President for this 
nomination, and I thank at least five of my Republican colleagues who 
have already stated they are going to vote for her. I hope there will 
be more.
  Elena Kagan was born into a family with a deep and abiding commitment 
to public service. Her mother was a public schoolteacher. Her dad was a 
tenant's lawyer. She followed in both her parents' footsteps, serving 
both as a teacher and a lawyer.
  She brings a depth and richness of legal experience that will serve 
her well on the Supreme Court. She served as a law clerk for legendary 
Justice Thurgood Marshall. She has been an attorney in private 
practice. She has been a White House lawyer, a law school professor, a 
dean, and now she is the Nation's top lawyer. So when I hear a few of 
my colleagues come to the floor and say she is not qualified for this 
position, I wish to repeat her experiences: law clerk for legendary 
Justice Thurgood Marshall, an attorney in private practice, a White 
House lawyer, a law school professor, a dean of a law school, and the 
Nation's top lawyer before the Supreme Court.
  I think that resume speaks for itself. She has been in the real world 
in some of these jobs--practically all of them--and that is important. 
We want to make sure we have Justices who understand what life is all 
about.
  As Solicitor General, the country's top lawyer before the Court, she 
has filed hundreds of briefs and successfully argued a broad range of 
cases, including defending Congress's ability to protect our children 
from pedophiles and protecting our Nation's ability to prosecute those 
who provide material support to terror groups. That is why she has the 
support of so many former Solicitors General, and that is why she 
received the highest rating from the American Bar Association: 
unanimously ``well qualified.''
  She is widely respected for her exceptional intellect, her deep 
knowledge of constitutional and administrative law and she has a proven 
ability to build consensus. How important is that in today's world 
where there is too much shouting and not enough conversation. Her 
qualities are qualities that are critical for the Court at this time.
  Let's hear what Elena Kagan's peers and colleagues in the legal 
profession say about her. There is a letter signed by eight former 
Solicitors General who served in both Democratic and Republican 
administrations. This is what they wrote:

       Elena Kagan would bring to the Supreme Court a breadth of 
     experience and a history of great accomplishment in the law.

  Then, there is a joint letter from former Deputy Solicitors General 
and Assistants to the Solicitor General. They write about her:

       [Her] intellectual ability, integrity and independence, 
     personal skills, and broad experience promise to make her an 
     outstanding Supreme Court Justice.

  The National Association of Women Judges wrote:

       General Kagan's rich and varied legal career--as a private 
     attorney, a White House lawyer, a professor, Dean and as the 
     country's top lawyer--provides her with a unique 
     constellation of experiences that will bring fresh ideas to 
     the Court.

  Sixty-nine law school deans wrote a letter on her behalf, and they 
wrote:

       She is an incisive and astute analyst of the law, with a 
     deep understanding of both doctrine and policy.

  The National District Attorneys Association wrote that they believe 
that ``Solicitor General Kagan's diverse and impressive life 
experiences will be a welcome addition to the Court.''
  So if you look at these letters, what you see is a broad swath of 
support for this nominee, from Republicans and Democrats and 
Independents, from people who practice law to prosecutors. It is a very 
broad range of support.
  So I think this is an important day for all Americans who believe 
every branch of our government--the Congress, the administration, and 
the judiciary--should reflect the diversity of our great country.
  Justice Sandra Day O'Connor said in an interview last year:


[[Page 15107]]

       About half of all law graduates today are women, and we 
     have a tremendous number of qualified women in the country 
     who are serving as lawyers. So they ought to be represented 
     on the Court.

  I have had the extreme honor of speaking with the Honorable Sandra 
Day O'Connor, the former Justice of the Supreme Court, many times, and 
she always made the point to me, over and over, about how crucial it 
was in the Court to have a woman's voice. In a body of nine, it seems 
right that we move toward equal numbers, and we are doing that today. 
Again, the most important thing is, you have to get the best on the 
Court. Of course, that is No. 1. But as Sandra Day O'Connor has said 
clearly, since ``half of all law [school] graduates today are women, we 
have a tremendous number of qualified women . . . [s]o they ought to be 
represented on the Court.'' I am sure she is--I do not want to speak 
for her, but I am sure she is very pleased to see we are moving toward 
full equality in this country.
  Elena Kagan is a role model for so many women entering the legal 
profession today. Her intellect, her broad range of legal experience, 
her sense of fairness, her profound respect for the law make her well 
qualified to serve as an Associate Justice of the Court.
  I will be so honored to vote in favor of her nomination, and I hope 
we will have more than five Republicans, and I hope the one Democrat 
who said no might rethink it. We will see what happens. But I think, at 
the end of the day, this country will be better served because we will 
have a new Justice and her name will be Elena Kagan.
  I yield the floor.
  Mr. UDALL of Colorado. Mr. President, I rise today to speak on the 
nomination of Solicitor General Elena Kagan to be Associate Justice of 
the U.S. Supreme Court. As Senators, we have few responsibilities that 
have greater lasting impact on our country than providing advice and 
consent on the confirmation of nominees to serve on the high Court. In 
my 10 years in the House of Representatives, I witnessed the Senate 
consider just two Supreme Court confirmations, and now after serving 
only 19 months in the Senate, I have already had the distinct honor of 
considering two nominations. The historic importance of these 
appointments has not been lost on me, as we now consider confirming 
General Kagan to become the third female Justice on the current court, 
and only the fourth woman ever to serve on a court that was exclusively 
male for almost 200 years.
  I take my advice and consent responsibilities seriously, and as I 
consider each Supreme Court nominee, I focus on their judicial 
temperament, experience, pragmatism and demonstrated ability to view 
the law in ways that go beyond ideology. When I met with Solicitor 
General Kagan 2 months ago, I was impressed with her thoughtfulness and 
her knowledge of constitutional law. After reviewing her testimony 
before the Judiciary Committee, studying her record and hearing from a 
wide range of Coloradans, I am convinced that General Kagan possesses 
the qualities and attributes of a nominee who is eminently qualified 
and will be an effective member of the highest Court in our land. I am 
confident that she is not a rigid ideologue and that her judicial 
approach will serve our country well.
  I have not come to this decision lightly. I know that the judgments 
made by the Supreme Court have a real impact on the lives of 
Coloradans. From the right to equal pay to the freedom to keep and bear 
arms to so many other issues, the Supreme Court makes decisions that 
profoundly impact our rights and freedoms every year. I believe that 
General Kagan will provide a voice on the Court that will ensure 
fairness and adherence to judicial restraint and the rule of law.
  As I told General Kagan when I met with her, I am particularly 
interested in ensuring that the Justices understand the weight and 
impact of issues uniquely important in the West, including water 
rights, natural resources and Federal lands. And I am convinced that 
she understands the complexity and unique importance of these issues to 
Colorado.
  While I am comfortable with General Kagan's sensitivity to Western 
issues, I would be remiss if I did not add that I hope that after this 
confirmation process is complete, the White House will seriously 
consider the importance of geographic and educational diversity on the 
Supreme Court. Many of my colleagues have talked in the past about how 
a judge's personal background can help shape his or her understanding 
of the practical side of the issues that come before them. Similarly, I 
believe that the Court would be enhanced by the addition of Justices 
who come from west of the Mississippi.
  But today we are considering the nominee that the President chose, 
and she is an excellent choice. This week, I plan to cast my vote to 
confirm Solicitor General Kagan to be the next Associate Justice of the 
Supreme Court, and I would encourage my colleagues to support her 
confirmation as well.
  Mr. JOHNSON. Mr. President, I have often said that few decisions have 
a more lasting effect on our democracy than that of approving an 
individual's nomination to the Supreme Court. As you know, Supreme 
Court Justices enjoy lifetime tenure and answer some of the toughest 
questions facing our great Nation. For this reason, I take my 
constitutional duty of advice and consent very seriously.
  This will be the fourth time that I have provided advice and consent 
for a Supreme Court nominee. My votes have reflected the belief that, 
while the Senate should not act as a rubber stamp for the President, it 
should afford him due deference for his judicial nominees. Accordingly, 
I was proud to support the nomination of Chief Justice Roberts, Justice 
Alito, and Justice Sotomayor--all of whom have served our country with 
candor and dignity. While these Justices differ in some aspects of 
their judicial philosophy, they are alike in several respects: each has 
an unwavering commitment to justice and the rule of law, a thorough 
understanding of American jurisprudence, and views that are within the 
broad mainstream of contemporary legal thought. I am confident that Ms. 
Kagan shares these characteristics, which are crucial for service on 
the high Court.
  Ms. Kagan's distinguished career is a testament to her hard work, 
integrity, and intelligence. As her confirmation hearings made clear, 
Ms. Kagan is extremely well-respected in the legal community; her 
colleagues have spoken extensively of her keen legal sense and 
abilities as a consensus-builder. These are skills that will serve her 
well should she be confirmed by this body. Additionally, Ms. Kagan has 
exhibited a devotion to precedent and an understanding that, if 
confirmed, she will interpret, and not enact, the law. Importantly, Ms. 
Kagan received the highest rating possible from the American Bar 
Association. It is clear that she has an accomplished resume.
  Earlier this summer, I had the privilege of meeting with Ms. Kagan to 
learn more about her judicial philosophy. I was impressed by her 
brilliant legal mind and her commitment to justice and the rule of law. 
Ms. Kagan assured me that she will strictly adhere to precedent and 
remain a neutral arbiter should she be confirmed to the Supreme Court. 
I reviewed her record and found nothing to deter me from that belief. I 
had the opportunity to ask Ms. Kagan about her treatment of military 
recruiters while dean of Harvard Law School. This issue is particularly 
important to me because my son Brooks is a military recruiter for the 
Massachusetts National Guard. Ms. Kagan assured me that military 
recruiters had full access to Harvard law students for the entire 
duration of her deanship. I was very satisfied with Ms. Kagan's 
responses to my questions, and believe her to have the utmost respect 
and gratitude for military service.
  During our meeting, I asked Ms. Kagan about her understanding of 
tribal sovereignty. She told me that--while she has only a basic 
understanding of Native American legal issues--she would welcome the 
opportunity to visit Indian Country and learn more about tribal 
government. Upon reviewing her record, I was happy to learn that Ms. 
Kagan is an advisory board member of

[[Page 15108]]

the American Indian Empowerment Fund, an organization that seeks to 
empower Native American children and families. After speaking with Ms. 
Kagan, I am confident that she will respect the right to tribal 
sovereignty. I look forward to her eventual visit to Indian Country.
  I believe that Elena Kagan would make a tremendous addition to the 
Court. Her distinguished record and commitment to justice and the 
Constitution make her a well-qualified candidate. It is my hope that 
she receives the bipartisan support that she deserves.
  The PRESIDING OFFICER. The Senator from Arkansas.


                     Healthy, Hunger-Free Kids Act

  Mrs. LINCOLN. Mr. President, I come to the floor for the second week 
to continue to urge and compel my colleagues to pass the child 
nutrition reauthorization legislation before our child nutrition 
programs expire on September 30.
  I know we have much to do. We are coming to the end of our work 
period before we go home to our States during August. But we all know 
when we come back in September our time will also be limited, and doing 
something now is critically important.
  The bipartisan Healthy, Hunger-Free Kids Act will put our country on 
a path to significantly improving the health of the next generation of 
Americans. Congress has the opportunity to make a historic investment--
the biggest investment in the history of our program--in our most 
precious gift and the future of this country: our children--all our 
children.
  We are circulating a consent request right now that will require no 
more than 3 hours, at a maximum, of Senators' time to do this. Three 
hours is all we are asking of this body to be able to make a historic 
effort on behalf of our children.
  Last week, I spoke multiple times on the floor about this bill. I 
talked about the very real threat of hunger and obesity in this country 
and how our bill works to address both these critical issues.
  I talked about the cost of action. This bill is completely paid for 
and will not add one cent to the deficit. In fact, in my opinion, we 
have operated in this bill exactly how the American people want to see 
us operate. We have gone through the regular order of the committee. We 
have worked in a bipartisan way. We have worked in a fiscally 
responsible way to pay for this bill out of the actual areas in 
agriculture and in the Ag Committee where we could pay for this bill. 
It is completely paid for, as I said before, so adding to the debt is 
not an issue.
  I also talked about the cost of inaction, about what it will mean to 
our States, to our schools, to our hard-working families, and to those 
families who, unfortunately, due to no fault of their own, have been 
caught in these economic crisis times, who are without work but whose 
children still go to school and still need to be fed.
  Certainly, I have talked about the cost to the most important 
category; that is, our children--the fact that if we do not move on 
this bill, it is yet 1 more year in a child's life that is not going to 
see the evidence of good nutrition, its availability in schools through 
programs that we both have and we expand, and those programs which we 
can actually create more for in terms of afterschool meals instead of 
afterschool snacks. Another school year will start without nutritional 
standards for meals served in schools, meaning we will miss yet another 
important cycle in a child's life to instill good eating habits.
  I think about not just younger children but older children, as my 
kids are moving into high school and starting football practice. I 
think about the ability to be able to see even those older children in 
afterschool programs, to be able to receive a full meal at the end of 
that day instead of just a simple snack.
  Schools will lose out on the first increase in the reimbursement rate 
to school feeding programs since 1973.
  I say to the Presiding Officer, think about where you were in 1973. I 
think about where I was in 1973. I think about what 1973 dollars 
purchased and what 2010 costs are today. How far do those 1973 dollars 
go when we go to the grocery store and pay 2010 prices? Think about 
what our school services are up against in using those 1973 dollars.
  Our afterschool feeding programs will suffer, meaning Congress will 
fail to recognize that hunger does not end when the school bell rings 
and our children are done with their studies.
  I simply do not think it is too much to ask. We can sacrifice 3 hours 
of our time for our children, for all our children in this great 
country, because they will be there as a workforce, as leaders, as 
teachers, as soldiers. They will be there for us as they grow up and 
become the next generation.
  Yet we have an opportunity here, and if we let it pass us by, it will 
be certainly no one's fault but our own. We continue to spend a lot of 
time debating bills on the floor this week without seeing much in the 
way of actual results. This bill represents a real opportunity for us 
to actually get something done and to breathe some fresh, new, 
bipartisan air into this Chamber for a change.
  I think the American people are looking for us to do that. I think 
they are thirsty for results. They want us to roll up our sleeves, make 
the tough decisions, and get things done, which is what we were elected 
to do. They do not want to see us wasting precious time, putting each 
other's respective political parties in difficult positions. They want 
to see us spending our time wisely and seizing the opportunities where 
we have come together in a bipartisan manner to solve real problems.
  Hunger and childhood obesity are real problems in the lives of our 
children today, and it is unfortunate. These are diseases for which we 
have a cure. It is simply that we must put that cure into place.
  We are elected in this body to work together to pass legislation that 
addresses the very real issues our families all across this Nation face 
together in each and every one of our States. Although our rates for 
hunger or obesity may fluctuate and be different State to State, it is 
still a very real problem in all of our States.
  This legislation allows us to do that. It allows us to address the 
very real issues that families are facing today and tomorrow and in the 
months ahead.
  On Monday of this week, First Lady Michelle Obama wrote an op-ed that 
was published in the Washington Post that reminded us about the 
historic opportunity we have in front of us--an opportunity to make our 
schools and our children healthier by passing this bill. I happen to 
have a copy of the First Lady's op-ed with me right now, and I ask 
unanimous consent that the full text be printed in the Record following 
my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mrs. LINCOLN. Thank you, Mr. President. One clear call to action in 
the First Lady's article was her statement about how important it is 
for Congress to pass this bill as soon as possible. She recognizes that 
we are poised to do something truly historic, and I could not agree 
with her more. I applaud her for her initiative and for her passion 
about this issue, her willingness to elevate it every opportunity she 
has, and to focus on, again, our greatest resource--our children.
  We also saw yesterday in the New York Times an op-ed published by our 
own Senator Dick Lugar who has been working so diligently in his time 
here in the Senate to bring a tremendous focus on hunger which exists 
in this country and globally. Very few people can match his dedication 
and his passion to this issue, and I am grateful for his comments. I 
ask unanimous consent that his op-ed be printed in the Record following 
my remarks as well.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 2.)
  Mrs. LINCOLN. Mr. President, I know we have a lot on our plate this 
week and certainly in the weeks to come, but I am determined to see 
this bill come up for a vote. I think people in this body have a great 
opportunity--

[[Page 15109]]

and they know it--to make a difference not just in their children's 
lives but in the lives of their neighbors' children, or people whom 
they don't even know, but they do know that those parents love and care 
for their children as much as each one of us loves and cares for our 
own children. They know those parents want every opportunity for other 
children across this globe, but certainly across this Nation, to be 
able to reach their potential.
  If you visit our schools, particularly in low-income areas, and you 
look in the eyes of those children, you know that one of the barriers 
for them in terms of reaching their potential unfortunately happens to 
be that they are hungry, that they are living in food insecurity, that 
they are struggling with obesity because of unfortunate cultural or 
poor eating habits. If there is anything we can solve that is a barrier 
to our children reaching their potential, it is something such as this 
which we know we have the cure for, we know we have the solutions for, 
and we have an opportunity this week to begin that process and make it 
happen through legislation we can pass here in the Senate. We can do it 
and we should.
  I am going to continue to come to the floor or to my colleagues to 
bring up this issue and to talk about it. It is a bill that I think can 
make a difference. I am going to continue to talk about the real 
children and the real families out there across this Nation who would 
benefit from this legislation and who are depending on us to do the 
right thing. I am going to continue to hassle and press my colleagues, 
as I have been known to do, so we can get this very important bill done 
in a timely way.
  I say to my colleagues, to this Nation, and to the opportunity that 
exists before us: Let's do it. In the words of the First Lady: Let's 
move. Let's get it going. Let's get it done. Let's not let this 
historic opportunity to change the lives of our children in this 
Nation--all of our children and, therefore, our future--let us not 
allow it to pass us by.

                               Exhibit 1

                [From the Washington Post, Aug. 2, 2010]

                          A Food Bill We Need

                          (By Michelle Obama)

       Last spring, a class of fifth-grade students from Bancroft 
     Elementary School in the District descended on the South Lawn 
     of the White House to help us dig, mulch, water and plant our 
     very first kitchen garden. In the months that followed, those 
     same students came back to check on the garden's progress and 
     taste the fruits (and vegetables) of their labor. Together, 
     they helped us spark a national conversation about the role 
     that food plays in helping us all live healthy lives.
       For years our nation has been struggling with an epidemic 
     of childhood obesity. We've all heard the statistics: how one 
     in three children in this country are either overweight or 
     obese, with even higher rates among African Americans, 
     Hispanics and Native Americans. We know that one in three 
     kids will suffer from diabetes at some point in their lives. 
     We've seen the cost to our economy--how we're spending almost 
     $150 billion every year to treat obesity-related conditions. 
     And we know that if we don't act now, those costs will just 
     keep rising.
       None of us wants that future for our children or our 
     country. That's the idea behind ``Let's Move!''--a nationwide 
     campaign started this year with a single and very ambitious 
     goal: solving the problem of childhood obesity in a 
     generation, so kids born today can reach adulthood at a 
     healthy weight.
       ``Let's Move!'' is helping parents get the tools they need 
     to keep their families healthy and fit. It's helping grocery 
     stores serve communities that don't have access to fresh 
     foods. And it's finding new ways to help America's children 
     stay physically active.
       But even if we all work to help our kids lead healthy lives 
     at home, they also need to stay healthy and active at school. 
     The last thing parents need or want is to see the progress 
     they're making at home lost during the school day.
       Right now, our country has a major opportunity to make our 
     schools and our children healthier. It's an opportunity we 
     haven't seen in years, and one that is too important to let 
     pass by.
       The Child Nutrition Bill working its way through Congress 
     has support from both Democrats and Republicans. This 
     groundbreaking legislation will bring fundamental change to 
     schools and improve the food options available to our 
     children.
       To start, the bill will make it easier for the tens of 
     millions of children who participate in the National School 
     Lunch Program and the School Breakfast Program--and many 
     others who are eligible but not enrolled--to get the 
     nutritious meals they need to do their best. It will set 
     higher nutritional standards for school meals by requiring 
     more fruits, vegetables and whole grains while reducing fat 
     and salt. It will offer rewards to schools that meet those 
     standards. And it will help eliminate junk food from vending 
     machines and a la carte lines--a major step that is supported 
     by parents, health-experts, and many in the food and beverage 
     industry.
       Over the past year, I have met with community leaders and 
     stakeholders from across the country--parents and teachers, 
     school board members and principals, suppliers and food 
     service workers--about the importance of making sure every 
     child in America has access to nutritious meals at school. 
     They all want what's best for our children, and they all know 
     how critical it is that we keep making progress.
       That's why it is so important that Congress pass this bill 
     as soon as possible. We owe it to the children who aren't 
     reaching their potential because they're not getting the 
     nutrition they need during the day. We owe it to the parents 
     who are working to keep their families healthy and looking 
     for a little support along the way. We owe it to the schools 
     that are trying to make progress but don't have the resources 
     they need. And we owe it to our country--because our 
     prosperity depends on the health and vitality of the next 
     generation.
       Changes like these are just the beginning, and we've got a 
     long way to go to reach our goals. But if we work together 
     and each do our part, I'm confident that we can give our 
     children the opportunities they need to succeed--and the 
     energy, strength and endurance to seize those opportunities.
                                  ____


                               Exhibit 2

                [From the New York Times, Aug. 3, 2010]

                   The Senate's Important Lunch Date

                         (By Richard G. Lugar)

       With federal child nutrition programs due to expire Sept. 
     30, the Senate should approve reauthorization legislation 
     this week, before the monthlong Congressional recess.
       The bill was unanimously approved by the Senate 
     Agriculture, Nutrition and Forestry Committee in March, and 
     it has no significant opposition. It has simply been a victim 
     of the crowded calendar of the Senate. But if we don't pass 
     the bill immediately, we will imperil programs that have 
     proved vital to our youth, families and schools for decades, 
     and that are especially important during this time of 
     economic stress.
       Since the recession began in late 2007, the use of federal 
     free and reduced-price school lunches has increased by 13.7 
     percent. Twenty-one million children--roughly two-thirds of 
     the students eating school lunches--benefit from the program.
       For many of these children, school lunches represent the 
     bulk of the nutrition they receive during the day, and it is 
     imperative that there are no gaps in providing these meals. 
     The bill would also cut out a lot of red tape in the filing 
     process, ensuring that more families and schools can 
     participate. And it would increase the scope of the 
     afterschool meal program that currently operates in only 13 
     states.
       Research shows that food insecurity and hunger rise during 
     the summer, when children don't have regular access to school 
     meals. The bill would continue to enlarge programs, operated 
     through organizations like local recreation departments, that 
     help feed young people when schools aren't in session.
       Year-round child nutrition programs, on top of improving 
     children's health and teaching them to eat better, are 
     critical to academic success. The school breakfast program 
     has been directly linked to gains in math and reading scores, 
     attendance and behavior, and speed and memory on cognitive 
     tests.
       By passing the legislation, we would expand access to the 
     supplemental nutrition program that makes certain that low-
     income women, infants and children are provided healthy 
     foods, information on eating well and referrals to health 
     care. The supplemental program already helps almost half of 
     all infants and about one-quarter of all children ages 1 to 4 
     in the United States; this legislation would provide millions 
     of dollars worth of further support.
       The new bill would also make great strides in reducing junk 
     food in schools and improving the nutritional quality of 
     meals. Nearly one-third of our children are either overweight 
     or obese, which is telling evidence of greater social 
     problems. Indeed, it's become a national security issue--27 
     percent of 17-to 24-year-olds weigh too much to enlist in the 
     military, according to a recent study by a group of retired 
     generals and admirals. This cannot continue.
       I have been through many battles on child nutrition, from 
     my days on the Indianapolis Board of School Commissioners to 
     my time as the chairman of the Agriculture Committee. We have 
     debated local and state control, nutritional mandates, the 
     scope of the lunch programs and the unhealthy food choices in 
     school vending machines.
       This bill, though, is as close to a moment of consensus as 
     can be achieved. There is bipartisan agreement, thanks to the 
     efforts of the Agriculture Committee's Democratic

[[Page 15110]]

     chairwoman, Blanche Lincoln of Arkansas, and its ranking 
     Republican member, Saxby Chambliss of Georgia. Our only 
     hurdle is the Senate schedule, which we would do well to 
     surmount this week.
       Given our economic climate and tradition of bipartisan 
     support for child nutrition, we should pass this meritorious 
     bill now. It would be a success that both parties can claim.

  Mrs. LINCOLN. Thank you, Mr. President. I yield the floor and note 
the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant editor of the Daily Digest proceeded to call the roll.
  Mr. SHELBY. 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. SHELBY. Mr. President, I rise today in opposition to the 
nomination of Solicitor General Elena Kagan to the U.S. Supreme Court.
  Upon President Obama's nomination of Ms. Kagan, I stated that I would 
base my decision on what I could ascertain about her judicial 
philosophy from other components of her record, in light of her lack of 
judicial experience. What little information she offered during her 
confirmation hearings did not accrue to her credit, in my judgment.
  I am unconvinced that the hostility Ms. Kagan demonstrated toward the 
second amendment as clerk to Justice Marshall, counsel for the Clinton 
sdministration, and as Solicitor General under President Obama has 
changed or would not drive her legal opinions on the matter.
  Ms. Kagan has spent her career implementing antigun initiatives and 
evidence of her antagonistic attitude towards the second amendment can 
be found from the beginning of her legal career.
  As a U.S. Supreme Court law clerk in 1987, Ms. Kagan stated she was 
``not sympathetic'' toward a man who contended that his constitutional 
rights were violated when he was convicted for carrying an unlicensed 
gun. Think about that.
  In a memorandum to Justice Marshall regarding Sandidge v. United 
States, Ms. Kagan wrote that Mr. Sandidge's ``sole contention is that 
the District of Columbia's firearm statutes violate his constitutional 
rights to keep and bear arms.' I'm not sympathetic.'' She recommended 
that the Supreme Court not even hear the case, thereby allowing Mr. 
Sandidge's conviction to stand.
  When Ms. Kagan served as a political adviser to President Clinton, 
she played a key role in the gun control efforts that were a trademark 
of the Clinton administration. Ms. Kagan took a lead role in a series 
of efforts to respond to the Supreme Court's 1997 ruling in Printz v. 
United States, which struck down parts of the 1993 Brady handgun law.
  Ms. Kagan drafted proposals that would have effectively prohibited 
the sale of guns without action by a ``chief law enforcement officer.'' 
She authored a draft executive order requiring ``all federal law 
enforcement officers to install locks on their weapons'' and one to 
restrict the importation of certain semiautomatic rifles. Ms. Kagan 
drafted two memorandums in 1998 that advocated for policy announcements 
on various gun control proposals, including ``legislation requiring 
background checks for all secondary market gun purchases,'' and a ``gun 
tracing initiative.''
  As Solicitor General for President Obama, Ms. Kagan failed to find a 
Federal interest in the McDonald v. Chicago case and did not even file 
a brief in the case.
  Assaults on the second amendment will not end with the McDonald v. 
Chicago ruling. Therefore, the overarching question remains will Ms. 
Kagan's attitude as a Supreme Court Justice radically change from her 
clear and extensive anti-second amendment record?
  I firmly believe the right to bear arms is a fundamental right. This 
has been enunciated through the courts. I do not believe Ms. Kagan's 
political record and prejudiced background in opposition to the second 
amendment shows that she is prepared to uphold this core constitutional 
guarantee as a Supreme Court Justice.
  In fact, Ms. Kagan's record has demonstrated a disregard for those 
laws and constitutional rights she disagrees with. This is also clearly 
evidenced in her affront to our men and women in the military. I will 
explain.
  As a vocal critic of the military's don't ask, don't tell policy, Ms. 
Kagan barred military recruiters from Harvard's campus during her time 
as dean of Harvard Law School. She made her personal feelings 
unmistakable by repeatedly stating that she abhorred the military's 
don't ask, don't tell policy, calling it a ``moral injustice of the 
first order.''
  By barring recruiters, Ms. Kagan's actions violated the Solomon 
Amendment, which requires that the military receive equal access to 
that of other employers on campus or jeopardize their Federal funding. 
Ms. Kagan joined a brief before the Supreme Court arguing that Harvard 
should be able to keep military recruiters off campus but still receive 
Federal funds--although that was in violation of the law.
  She refused to permit ordinary campus access to military recruiters 
during a time of war, yet still wanted to cash in on Federal funding.
  This position was unanimously rejected in 2006, with the Supreme 
Court stating that this was clearly not what Congress intended.
  I find it ironic that we are asked to replace the only Justice with 
wartime experience with a nominee who willingly obstructed our military 
during a time of war.
  It is unacceptable to limit the ability of our Armed Forces to 
recruit on campus at a time when the United States is fighting two 
wars.
  I have serious concerns about her actions against the military and 
her willingness to prevent access to potential recruits during a time 
of war.
  This incident illustrated her liberal agenda superseding her 
professional judgment.
  I have highlighted only two issues of many that exemplify Ms. Kagan's 
well-defined political record. Put simply, she is a political activist, 
not a jurist.
  Throughout her confirmation hearings, she failed to explain where her 
political philosophy ends and her judicial philosophy begins.
  Mr. President, we need a legal mind on the Supreme Court, not a 
political one.
  We need an impartial arbiter, not a partisan political operative.
  Therefore, I firmly oppose Ms. Kagan's nomination to be an Associate 
Justice on the Supreme Court.
  The PRESIDING OFFICER. The Senator from Ohio is recognized.
  Mr. BROWN of Ohio. Mr. President, I ask unanimous consent to speak 
for up to 10 minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                       Honoring Our Armed Forces

                  Lima Company Battalion, 25th Marines

  Mr. BROWN of Ohio. Mr. President, I rise today to honor some 30 
members of the Armed Forces who were killed in action serving our 
country. Five years ago this week, 19 marines from the 3rd Battalion, 
25th Marine Regiment lost their lives while serving in Iraq. It was one 
of the most catastrophic IED attacks on our forces up until that time 
in the war. Eleven of those marines were from the Lima Company, an 
Infantry Reserve company with marines from Cincinnati, Chillicothe, 
Tallmage, Willoughby, Delaware, and Grove City, OH.
  Headquartered in Brook Part, OH, the 3rd Battalion, 25th Marine 
Regiment, known as the 3/25, deployed to Iraq on February 28, 2005. 
Upon arriving in Iraq, they were indispensable. They trained Iraqi 
security forces. They conducted critical stability and security 
operations in and around the cities of Iraq's Al Anbar Province.
  From May to August of that year, 5 years ago, they tracked down 
insurgents, disrupted enemy transportation routes, and seized weapons 
caches.
  They participated in Operation Matador to eliminate an insurgent 
sanctuary north of the Euphrates River. In doing so, they disrupted a 
major insurgent smuggling route and gained valuable intelligence.

[[Page 15111]]

  During Operation New Market, the Lima Company of 3/25 swept a hostile 
area near Haditha, Iraq.
  In June of 2005, during Operation Spear, they helped clear the city 
of Karabila and recovered Iraqi hostages and destroyed several weapons 
caches.
  From August 1 to 3, 2005, the Lima Company participated in the Battle 
of Haditha, a code-named Operation Quick Strike. This operation was 
launched after a marine unit of the 3/25 was attacked and killed by a 
large group of insurgents on August 1, 2005.
  On August 3, 2005, the 3/25 were en route to the initial attack when 
their amphibious assault vehicle hit a pair of double-stacked antitank 
mines. The vehicle was completely destroyed in the explosion, and 15 of 
the 16 marines inside the vehicle died. All of the marines killed were 
assigned to the 3/25; 11 belonged to the Lima Company. At the time, the 
Lima Company was one of the hardest hit marine units in the war. In the 
span of 72 hours--from August 1 to August 3, 2005--19 marines with the 
3/25 were killed by insurgents or insurgent-made IEDs.
  Yet in the wake of losing their fellow marines, the Lima Company 
continued to carry out their mission to disrupt the militant presence 
in the surrounding areas.
  Returning from Iraq, the Lima Company was welcomed by family members, 
friends, and communities. Many families, however, tragically were 
unable to welcome home their son, husband, father, or loved one.
  Over the course of their 7-month deployment, the marines of the 3/25 
participated in 15 regimental and battalion operations; 33 of them were 
killed in action.
  We should again honor these heroes. I have met the families of many 
of these men--they were all men--many of these marines who were killed 
in action. I spent time talking with many of them about their sons or 
their husbands or their fathers or their loved ones.
  Five years after the Lima Company's single greatest loss, we remember 
the marines who lost their lives early in those days of August 2005. I 
wish to share the names with my colleagues in the Senate:
  Cpl Jeffrey A. Boskovitch, 25, of Seven Hills, OH;
  Sgt David Coullard, 32, of Glastonbury, CT;
  LCpl Daniel Deyarmin, Jr. 22, of Tallmadge, OH;
  LCpl Brian Montgomery, 26, of Willoughby, OH;
  Sgt Nathaniel Rock, 26, of Toronto, OH;
  LCpl Christopher Jenkins Dyer, 19, of Cincinnati, OH;
  LCpl William Brett Wightman, 22, of Sabina, OH;
  LCpl Edward August ``Augie'' Schroeder II, 23, of Columbus, OH. His 
parents live in Cleveland.
  LCpl Aaron Reed, 21, of Chillicothe, OH;
  Cpl David Stewart, 24, of Bogalusa, LA;
  Cpl David Kenneth Kreuter, 26, of Cincinnati, OH;
  Sgt Justin Hoffman, 27, of Delaware, OH;
  LCpl Eric Bernholtz, 23, of Grove City, OH;
  LCpl Timothy Bell, Jr., 22, of West Chester, OH;
  LCpl Michael Cifuentes, 25, of Fairfield, OH.
  The families and communities of the Lima Company, 3rd Battalion, 25th 
Marine Corps Regiment have since banded together to immortalize the 
lives of their fallen heroes.
  Two years ago, a set of eight life-size paintings was unveiled at the 
Ohio Statehouse in Columbus, with each marine's boots and an eternal 
flame placed below his likeness. The memorial is currently on display 
at the Museum of the Marine Corps just outside Washington, DC, in 
Quantico, VA. These men are remembered and they are honored through a 
standing granite memorial at Lima Company's headquarters at 
Rickenbacker Air National Guard Base just outside of Columbus.
  Most notably, these fallen men are immortalized in the hearts, minds, 
and lives of their families and fellow marines.
  When I talk still with family members, they are so interested in our 
continuing to memorialize and remember in our hearts and our minds and 
in public displays, such as this when possible, the sacrifice of their 
relatives.
  Today we remember and we honor these courageous men. Their sacrifice 
has not gone unnoticed by the people of a proud State and a grateful 
nation.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I thank Senator Brown for his important 
comments, and I join him in expressing my sympathy for their loss and 
my appreciation of the courage and dedication of our men and women in 
uniform.
  I rise to speak of my concerns over Ms. Elena Kagan's refusal as 
Solicitor General of the United States to defend Federal laws--laws 
with which she clearly did not agree and with which her President, 
President Obama, did not agree. Her handling of this matter alone, in 
my opinion, as one who spent 15 years in the Department of Justice, who 
loves the Department of Justice, who believes in the rule of law in 
America, is a disqualifying act by her and should disqualify her from 
serving on the Supreme Court.
  I laid out my concerns at her confirmation hearings and asked her to 
respond. I gave her at the hearing almost 10 minutes to do so. It was 
the only time I noticed she actually used notes. Her explanation was 
not satisfactory.
  It is well known by anyone who followed the process that Ms. Kagan 
has personally opposed the don't ask, don't tell law--a law passed by a 
Democratic Congress and signed into law by President Clinton. It was 
not merely a military policy but a Federal law. She served 5 years in 
the administration of President Clinton in the White House. I am not 
aware that she ever protested to him about signing that law.
  The law says, in effect, that openly homosexual persons may not serve 
in the U.S. military--don't ask, don't tell. Ms. Kagan was a fierce 
critic of that law when she was dean of Harvard Law School. She 
justified her decision while at Harvard to ban military recruiters from 
the campus Career Services Office--in clear defiance of subsequent 
Federal law, the Solomon Amendment--on the basis of her opposition to 
don't ask, don't tell. The Congress passed four separate Solomon 
Amendments to make sure people such as Dean Kagan were not treating our 
military on campus as second-class citizens, which is how they were 
being treated.
  She argued while at Harvard that don't ask, don't tell was a ``moral 
injustice of the first order.'' I accept that as her opinion. I do not 
agree with it, but I accept that as a legitimate opinion. But I do not 
accept her actions blocking military recruiting as legitimate.
  Given her strong personal opposition to don't ask, don't tell, she 
was specifically asked when she appeared before the Senate Judiciary 
Committee on her nomination to be Solicitor General of the United 
States--the position in the Department of Justice that defends Federal 
law before the Supreme Court of the United States, the greatest lawyer 
job in the world, some say--whether she would be able to fulfill her 
duty as Solicitor General by defending this very law she had opposed.
  She promised the committee under oath that she could and that she 
would defend the law. She said that her ``role as Solicitor General . . 
. would be to advance not my own views, but the interests of the United 
States.'' That is absolutely correct. That is the duty of the Solicitor 
General. It is a duty, not a matter of discussion. She stated she was 
``fully convinced'' that she could ``represent all of these interests 
with vigor, even when they conflict with my own opinions.''
  She said she would ``apply the usual strong presumption of 
constitutionality'' to the don't ask, don't tell law as reinforced by 
``the doctrine of judicial deference to legislation involving military 
matters.''
  There was no doubt about what Ms. Kagan's duty was as Solicitor 
General if, as was expected, she would be confronted with legal 
challenges to the don't ask, don't tell law. She had a clear duty under 
the law and in her

[[Page 15112]]

duty as Solicitor General to defend this law of the United States. In 
addition, she had explicitly promised the Senate under oath that she 
would defend this specific law, even though she disagreed with it.
  As it happened, Ms. Kagan was, indeed, faced with the opportunity to 
defend the don't ask, don't tell law immediately after she took office. 
Right after she took office, there it was.
  In the months leading up to her confirmation, two Federal courts of 
appeals had decided cases challenging don't ask, don't tell. In one 
decision, the First Circuit--is in the Northeast of our country--upheld 
the law. They said it was lawful and constitutional. In the other case, 
called Witt v. Department of Air Force, the Ninth Circuit, on the west 
coast, considered to be the most liberal circuit in America, refused to 
uphold the law.
  The Ninth Circuit's decision in the Witt case basically did two 
things. I hope my colleagues will pay attention to this because it is 
important. Did the Solicitor General, who now wants to be on the 
Supreme Court, fulfill her duty or did she not?
  The Ninth Circuit ordered the military to go back down to the 
district court. This is the Court of Appeals, one step below the 
Supreme Court. They said: No, we want this case to go back to the 
district court to be decided after a trial, during wartime, I might 
add. The military would be required to justify the don't ask, don't 
tell law under a new legal standard that the court had invented out of 
whole cloth.
  The Ninth Circuit said the government would not be allowed to defend 
the law as a rational, uniform policy that applies to all Armed Forces, 
as had been done in the First Circuit where the law was affirmed. The 
First Circuit affirmed it as a matter of law, without any big trial. 
Was this statute, this congressional action setting military policy, 
unconstitutional? The First Circuit said it was not. It was lawful. But 
the Ninth Circuit said the military would have to prove that the 
application of don't ask, don't tell ``specifically to [this individual 
plaintiff--Witt] significantly furthers the government's interest and 
[that] less intrusive means would [not] achieve substantially the 
government's interest.'' That was a devastating standard. It was very 
problematic.
  After that unprecedented decision in mid-2008, the Solicitor 
General's Office then in the Bush administration immediately recognized 
the seriousness of the decision and authorized an appeal to the full 
Ninth Circuit en banc and asked the full circuit to overrule this 
three-judge panel decision.
  The court did not agree to take the case and overrule the panel. But 
there were strong objections from several judges of the Ninth Circuit 
who thought their colleagues had clearly gotten the case wrong, as I 
truly believe they had.
  At that point, the government was faced with a decision: Should they 
appeal the Ninth Circuit decision directly to the Supreme Court? By 
that time, the Obama administration had come into office and, Ms. 
Kagan, who believed this law was immoral and an injustice of the first 
order, had been confirmed as Solicitor General. It fell to her to 
decide whether to take the appeal to the Supreme Court. She refused.
  Instead, she decided to let the Ninth Circuit decision stand and 
allow the case to go back down to the trial court for a prolonged 
trial. In so doing, she failed in her fundamental responsibility as 
Solicitor General and to her sworn promise to the Senate to defend the 
statutes of the United States regardless of her personal policy views.
  I make that statement with care. I gave her 10 minutes, virtually 
uninterrupted, to explain why she made this decision, because it 
troubled me, as someone who understands the importance of the duties of 
the Solicitor General. If you do not fulfill your duties of Solicitor 
General, should you then be promoted to the U.S. Supreme Court, I ask? 
This was a very bad decision, in my view.
  Her long answer I thought was hollow and at many points disingenuous. 
She gave three reasons why she acted the way she did.
  First, she said she concluded it would be better to wait to appeal to 
the Supreme Court until after trial because a trial would build a 
``fuller record'' of the case. Once the facts were better developed, 
she claimed, the government might be in a better position before the 
Supreme Court.
  Second, she said that allowing the case to go back to the district 
court would help the government in a future appeal because it would be 
able to ``show what the Ninth Circuit was demanding that the government 
do'' in order to defend the don't ask, don't tell statute. Going 
through a disruptive trial, she said, would allow the government to 
tell the Supreme Court just how invasive and ``strange'' were the 
demands of the Ninth Circuit on the government. Well, they were 
invasive and strange. There is no doubt about that.
  Third, she said, the appeal in the Witt case would have been 
``interlocutory''--that is an appeal in the middle of a case rather 
than at the end, after a final judgment--and the Supreme Court prefers 
not to hear these kinds of appeals.
  None of her explanations are credible, in my view. If you analyze 
this fairly, I do not believe any one of those explanations can be 
sustained. Another explanation, however, can be sustained.
  It is true that appellate courts, including the Supreme Court, prefer 
to hear appeals at the end of a case rather than at the middle, but 
that is a decision the Court can make for itself and does make for 
itself. It is not something the Solicitor General should decide on the 
Court's behalf and not to take up a case when they have a good legal 
basis to take it up and to avoid an incredibly burdensome trial would 
undermine military policy in 40 percent of the country. The Ninth 
Circuit includes 40 percent of America under its jurisdiction.
  At the very least there would have been no harm to the government in 
asking the Court to review the case early. No harm whatsoever. If the 
Court refused to take the case at that time--interlocutorily--the 
government could always take a later appeal. Any concerns about 
avoiding early appeals were clearly outweighed in this case. There 
already had been a split among the circuit courts of appeals. The Ninth 
Circuit ruling squarely conflicted with the First Circuit, and it was 
also at odds with the decisions from four other circuit courts on 
similar issues. The Ninth Circuit opinion presented clean questions of 
law: Should this matter be decided as a matter of law, as the First 
Circuit said, or should it be decided only after some prolonged trial, 
as the Ninth Circuit said? This was a critically important matter that 
I think the Supreme Court, recognizing we are a Nation at war, 
recognizing this is an important Defense Department policy, would have 
agreed to hear.
  Ms. Kagan's second explanation--that letting the case go to trial 
would allow the government to just show how painful a trial would be--
makes no sense. The Ninth Circuit made it very clear in their opinion 
that the government was going to have to justify the application of 
don't ask, don't tell to this specific plaintiff--Ms. Witt--to prove 
that this specific plaintiff was going to harm the military if she were 
to be allowed to remain in the Air Force. It was also obvious that such 
a trial was going to be disruptive to the military and that it would 
harm the ``unit cohesion'' that Congress had set out to protect when it 
passed don't ask, don't tell.
  Ms. Kagan's predecessors in the Department of Justice and in the 
Solicitor General's Office immediately recognized the damage that would 
result from allowing the Ninth Circuit decision to stand. That is why 
they asked for a rehearing immediately. At that time, this is what they 
said:

       [The Ninth Circuit decision] creates an inter-circuit split 
     . . . a conflict with Supreme Court precedent, and an 
     unworkable rule that cannot be implemented without disrupting 
     the military.

  I think they were exactly right on that. The Ninth Circuit decision, 
they went on to say, made the constitutionality of a Federal law 
setting military policy for the entire Nation

[[Page 15113]]

``depend[] on case-by-case surveys, taken by lawyers, of the troops in 
a particular plaintiff's unit.'' And that is true. Immediate review, 
they insisted, was ``needed now to prevent this unprecedented and 
disruptive process.''
  Most importantly, Ms. Kagan's first explanation to the Judiciary 
Committee for her decision to send this case back to trial--that she 
thought the government's case would benefit from a fuller factual 
development of the case--was simply false. The records of this case on 
remand to the District Court show that Ms. Kagan knew--knew--at the 
time she decided to let the case go back to trial that such a trial was 
going to be massively disruptive.
  I have studied the record in the case as it headed for trial, where 
lower ranking lawyers in the Department of Justice are now trying to 
defend the case at trial. These lawyers have been fighting desperately 
to avoid or to limit this open discovery process. According to these 
career attorneys, the discovery process is ``threatening'' and 
``jeopardizing the unit morale and cohesion.''
  Remember, Ms. Kagan told us--the members of the Judiciary Committee, 
during her confirmation testimony--that building a factual record would 
be good for the government's case. But here the career lawyers who are 
defending the case are contending that building this factual record is 
bad for the government, and these lawyers are right.
  The plaintiff in this case has asked for and received, by virtue of 
the Ninth Circuit order--and this was plainly predictable from reading 
that order--access to the personnel records of the entire military unit 
of the plaintiff. They have demanded depositions of other soldiers who 
served with the plaintiff before she was separated from the military. 
They have demanded the right to interview soldiers about their private 
lives, their personal views of their former colleague, and their 
private thoughts about sexuality.
  As I have said before, this is not just a case in which Ms. Kagan 
showed bad legal judgment. She did not send her client, the U.S. Air 
Force, down this path by mistake, it seems to me. She knew this was 
going to happen, and I believe she had reasons other than a strategic 
plan to defend the law as her reasons in making this decision.
  We know Ms. Kagan realized a trial would harm the military's 
interests because she said so to the lawyers on the other side of the 
case in the weeks before she made the final decision not to appeal. 
Once the case was back in this trial court, in this district court, the 
plaintiff's lawyers in one of the hearings made this statement to the 
trial judge there:

       [T]he government just doesn't want any discovery. I have 
     heard that message from the government clearly--loud and 
     clear. [We] were asked to meet with the Solicitor General of 
     the United States in April, and we heard that message loud 
     and clear that discovery is a big problem.

  So they had been asked, these lawyers, to go to Washington to meet 
with the Solicitor General to discuss the case and were told at that 
meeting that discovery was bad. Yet she testified in our hearing just a 
few weeks ago that she thought it was good for the government.
  In May of 2009, as Solicitor General, she made a decision to block an 
appeal to the Supreme Court. Before she made that decision, she had 
already met with these opposing counsel. And who were these lawyers? 
They were lawyers from the ACLU who were committed to the defeat and 
the elimination of this don't ask, don't tell law. She told them ``loud 
and clear'' that developing a factual record would be bad for the 
government. Yet she told us just a few weeks ago that it was good; that 
it was going to help the government's case.
  It appears to me that the most plausible--almost the only--conclusion 
that one can reach is that Ms. Kagan and the Obama administration 
generally were trying to keep the Supreme Court from deciding the 
constitutionality of don't ask, don't tell. Ms. Kagan, like the 
President, is personally opposed to don't ask, don't tell. The 
President has asked Congress to repeal don't ask, don't tell, and there 
is legislation pending now in the Senate that would repeal that law.
  But given the record of the Supreme Court on questions of military 
personnel policy, I am confident that the Ninth Circuit's radical 
decision would have been overturned had the Solicitor General taken the 
appeal. And given the timing of the case, we would likely have been 
reading a few weeks ago of a Supreme Court opinion holding that don't 
ask, don't tell was a constitutionally legitimate exercise of 
Congress's power over military affairs. If you think about it, you can 
see why such a ruling--upholding the constitutionality of a law that 
the administration wants to repeal--might not be politically helpful to 
them in that process.
  As I said earlier, there was another case dealing with don't ask, 
don't tell where the First Circuit had upheld the law. Of the 12 
plaintiffs involved in that First Circuit case, 11 of them decided to 
abandon their case and not appeal. In other words, they lost, they 
could have appealed to the Supreme Court, but hey abandoned their 
appeal and accepted the loss.
  Why would they do that? Why would their lawyers allow them to do 
that? Because, it appears to me, those defendants and their lawyers--
and included among some of those lawyers were Ms. Kagan's former 
colleagues from Harvard Law School--knew that the Supreme Court would 
likely uphold don't ask, don't tell if they took an appeal. That is 
what they did not want.
  Only one of the plaintiffs insisted on appealing to the Supreme 
Court--1 of the 12--in the face of much resistance from his legal 
advisers who, as you can see, were less interested in vindicating the 
right of those specific defendants than they were trying to create the 
best possible strategy to undermine or to defeat don't ask, don't tell. 
Interestingly, Ms. Kagan, again, did what the lawyers attacking the law 
wanted.
  One of the defendants wanted to appeal the First Circuit case. She 
could have allowed that appeal to go forward and gotten a definitive 
Supreme Court ruling. But she wrote the Supreme Court that they should 
not hear the appeal of the First Circuit; they should not accept that 
case for Supreme Court review. By urging the Court not to hear an 
appeal from that decision she denied the government a definitive 
decision from the Supreme Court, which I think was within their grasp.
  Actually, one of the reasons she urged the Supreme Court not to take 
the appeal in the First Circuit case was because she said the Ninth 
Circuit case would be a better case for the Court to review. Then, when 
the Ninth Circuit case was ripe, she did not appeal it. In effect, Ms. 
Kagan prevented the Supreme Court from ruling on the constitutionality 
of this law--a law she so strongly opposed.
  So I think it is clear. It would seem to me to be clear. If I am 
wrong about this, I would like to see my colleagues explain it. I offer 
them an opportunity. I don't think I am wrong. I have tried a lot more 
cases than Elena Kagan ever tried--since she has never tried one. I 
think it is clear her strategy was to avoid a Supreme Court ruling--
because she thought the Supreme Court would uphold don't ask, don't 
tell--and to drag out the proceedings in the lower court in hopes that 
maybe the administration would be able to convince Congress to repeal 
the law before the Supreme Court ruled. The record shows she was 
willing to do so, even if it meant this military unit would be turned 
upside-down by the lawyers from the ACLU.
  Remember, in each case--even in the First Circuit case, where they 
had lost--the ACLU lawyers did not want that case to go on appeal. And 
in the Ninth Circuit case they did not want the case to go on appeal to 
the Supreme Court. Why? To me, that is the final argument. Why did the 
Solicitor General acquiesce and adopt the very policy the ACLU lawyers 
wanted--not to appeal to the Supreme Court--other than that she did not 
want a definitive ruling and agreed with them it was likely the Supreme 
Court would affirm the law? I think that is what we are talking about.
  I hate to say that. That is why, in an unprecedented way--I don't 
think it

[[Page 15114]]

has ever happened since I have been in the Senate, certainly for a 
Supreme Court nominee, that they were given a full 10 minutes to answer 
uninterrupted why they made that decision.
  Her answer was unsatisfactory for the Solicitor General, the lawyer 
for the United States of America, whose duty and explicit promise was 
to defend don't ask, don't tell, even though she and her President did 
not agree with it.
  I have expressed my concern in this process, that Ms. Kagan's 
background and her record is more that of a political lawyer than a 
real lawyer. She certainly has never been a judge. She has never been, 
for any real period of time, a real lawyer. She went right out of law 
school, had 2 years in a private law firm and 14 months as Solicitor 
General.
  These political lawyers, sometimes they do not grasp the 
responsibility and duty and the power and the beauty and the majesty of 
the American legal system. They think it is all politics. They have not 
been before judges as I have been, as have many other lawyers by the 
hundreds of thousands in America, and seen justice rendered day after 
day--and sometimes seen injustice rendered--and know how to admire and 
appreciate justice and objectivity and legal acumen.
  Ms. Kagan's willingness to advance a political agenda without regard 
for her duty strikes at the very root of the rule of law in America, 
our greatest strength. As the hymn says, our liberty is in law. A 
person who cannot constrain herself to her proper role, to fulfill her 
duty to defend law, even when it runs contrary to her personal views, 
is no more likely to follow a law she dislikes if she is elevated to 
the Supreme Court. I suggest that is a threat to justice in America.
  I do think this is another incident--there are others in the record 
of this nominee--that indicates this is a political lawyer, an agenda-
driven lawyer, someone who has never served as a judge and never truly 
practiced law. The horrendous decision in not pursuing the opportunity 
to get a final decision from the Supreme Court on don't ask, don't 
tell, I believe, was made for reasons other than faithfully fulfilling 
her responsibilities as Solicitor General to defend these laws. And I 
believe it is disqualifying for one who seeks to serve on the highest 
Court in the land.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  Mr. McCAIN. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Merkley). Without objection, it is so 
ordered.
  Mr. McCAIN. Mr. President, I rise to discuss Solicitor General Elena 
Kagan's nomination to the U.S. Supreme Court. During my time in 
Congress, I have had the honor to vote in support for the nominations 
of several Associate Justices put forward by both Democratic and 
Republican Presidents. Presidents are due a great amount of deference 
in the evaluation of his or her nominees to be members of the highest 
Court in the land, and elections, I understand very well, do have 
consequences. However, in this case I am not able to provide such 
deference to President Obama's nominee who has shown such a public 
unwillingness to follow the law.
  When Ms. Kagan was dean of the Harvard Law School, she unmistakably 
discouraged Harvard students from considering a career in the military 
by denying military recruiters the same access to Harvard students that 
was granted to the Nation's top law firms. She barred military 
recruiters because she believed the Federal Government's don't ask, 
don't tell policy to be ``a profound wrong--a moral injustice of the 
first order.''
  Ms. Kagan is entitled to her opinion of whether the policy is wrong. 
She is not entitled to ignore the law that required universities to 
allow military recruiters on campus or forgo Federal funds.
  The chief of recruiting for the Air Force Judge Advocate General 
Corps was repeatedly blocked from participating in Harvard's spring 
2005 recruiting season and wrote to Pentagon leaders: ``Harvard is 
playing games and won't give us an on-campus interviewing date.''
  The Army's report from the 2005 recruiting season was even more 
blunt, stating: ``The Army was stonewalled at Harvard.''
  Ms. Kagan sought a compromise by asking the law school's Veterans 
Association to host military recruiters, but the association responded: 
``Given our tiny membership, meager budget, and lack of any office 
space, we possess neither the time nor the resources . . . of 
duplicating the excellent assistance provided by the Harvard Law School 
Office of Career Services.''
  The association was right and an Air Force Judge Advocate General 
recruiter wrote Pentagon officials, and I quote from his letter: 
``Without the support of the Career Services Office, we are relegated 
to wandering the halls in hopes that someone will stop and talk to 
us.''
  That was a remarkable statement from a military recruiter. According 
to the Solomon Amendment, any institution that barred recruiters from 
their campus would therefore not be eligible for Federal funds. Ms. 
Kagan and Harvard University, in general, and the law school in 
particular, were, according to this Air Force officer, doing that. 
``Without the support of the Career Services Office we are relegated to 
wandering the halls in hopes that someone will stop and talk to us.''
  The university that portrays itself as the premier institution in 
America relegated our officers and recruiters for honorable service in 
the military of the United States of America to ``wandering the halls 
in hopes that someone will stop and talk to us.''
  Ms. Kagan had a direct role in seeing that military recruiters were 
``relegated to wandering the halls in hopes that someone will stop and 
talk'' to them. Ms. Kagan's claim that she was bound by Harvard's 
antidiscrimination policy is belied by the fact that her predecessor 
allowed military recruiters full official access, a policy Ms. Kagan 
changed.
  While Ms. Kagan barred military recruiters access to the school, 
Harvard continued to receive millions of dollars in Federal aid. I will 
not go into my opinion of Harvard University's behavior throughout this 
whole issue of whether recruiters should be allowed on their campus. 
There are members of the ROTC who are still condemned to go to a 
neighboring institution for their training. But we are speaking of Ms. 
Kagan.
  During her confirmation hearing last month, Ms. Kagan asserted that 
Harvard law school was ``never out of compliance with the law . . . in 
fact, the veterans' association did a fabulous job of letting all our 
students know that the military recruiters were going to be at Harvard. 
. . .''
  She went on to state: ``The military at all times during my deanship 
had full and good access.''
  Absolutely false statement. Facts show that these statements are 
false, and recruitment for our Nation's military suffered due to her 
actions.
  Well, I strongly disagree with Ms. Kagan. I take no issue in terms of 
her nomination with her opposition to President Clinton's don't ask, 
don't tell policy. She is free to have her own ownership. Ms. Kagan was 
not free to ignore the Solomon Amendment's requirement to provide 
military recruiters equal access because she opposed don't ask, don't 
tell. In short, she interpreted her duties as dean of Harvard to be 
consistent with what she wished the law to be, not with what the law 
was as written.
  In the end, Ms. Kagan's interpretation of the Solomon Amendment was 
soundly rejected by the U.S. Supreme Court. By changing the policy she 
inherited and restricting military recruiter access when the prevailing 
law was to the contrary, Ms. Kagan stepped beyond public advocacy in 
opposition to a policy and into the realm of usurping the prerogative 
of the Congress and the President to make law and the courts to 
interpret it. It is precisely for this reason that I cannot support her 
nomination.

[[Page 15115]]

  I have previously stated that I do not believe judges should stray 
beyond their constitutional role and act as if they have greater 
insight into the meaning of the broad principles of our Constitution 
than representatives who are elected by the people. These activist 
judges assume the judiciary is a superlegislature of moral 
philosophers. It demonstrates a lack of respect for the popular will 
that is fundamental to our republican system of government.
  Regardless of one's success in academic and government service, an 
individual who does not appreciate the commonsense limitations on 
judicial power in our democratic system of government ultimately lacks 
a key qualification for a lifetime appointment to the bench. For Ms. 
Kagan, given the choice to uphold the law that was unpopular with her 
peers and students or interpret the law to achieve her own political 
objectives, she chose the latter.
  I cannot support her nomination to the Supreme Court, where, based on 
her prior actions, she is unlikely to exercise judicial restraint and 
respect the roles of the coequal branches of government.
  I am sure my colleague from Alabama, who has done so much work on 
this issue, probably recalls that during her confirmation process, 
Peter Hegseth, who is the executive director of Vets for Freedom, a 
veteran of the Iraq war, and currently an infantry captain in the 
Massachusetts Army National Guard, testified: ``I have serious concern 
about Elena Kagan's actions toward the military and her willingness to 
myopically focus on preventing the military from having institutional 
and equal access to top-notch recruits at a time of war.''
  He went on to say: ``I find her actions toward military recruiters at 
Harvard unbecoming a civic leader and unbefitting a nominee to the U.S. 
Supreme Court.''
  Another veteran, Flagg Youngblood, ROTC graduate from Princeton, 
testified at the same hearing: To defend the barriers Dean Kagan 
erected by saying military recruiting did not suffer misses the point. 
Just imagine how many more among Harvard Law's 1,900 young adults would 
have answered the Defense Department's call.
  Lastly, retired Air Force COL Thomas Moe, a veteran with 33 years of 
service to our Nation, testified: ``Ms. Kagan knowingly defied a 
particular law and treated military recruiters as second-class 
citizens. How can our warriors look at such people when they are poised 
at the tip of the sword, ready to sacrifice everything for their 
country, while a cloistered clique in ivory towers eats away at their 
institution for the sake of narrow ideological interests.''
  I know the Senator from Alabama was present at these hearings. I ask 
unanimous consent to engage in a short colloquy with the Senator from 
Alabama.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. Mr. President, Ms. Kagan stated that she--I understand 
her words were ``reveres the military;'' is that correct?
  Mr. SESSIONS. She did use that word.
  Mr. McCAIN. Is it a bit contradictory that you would want to treat 
the military as ``separate but equal,'' condemning them--the Air Force 
Judge Advocate General military person said they were condemned to 
wandering the halls of Harvard Law School in hopes that someone would 
stop and talk to them. Is that, I wonder, in keeping with the actions 
of someone who claims they revere the military?
  Mr. SESSIONS. I certainly do not believe it is. As the Senator has 
noted repeatedly--and we serve on the Armed Services Committee 
together--this was not a military policy; this was a law passed by this 
Congress and signed by President Clinton, with whom she worked for 5 
years. But she was punishing these young officers, many of them, 
demeaning them, making them be treated in a second-class way because 
she did not agree with that policy.
  Mr. McCAIN. May I ask the Senator, is there any doubt in your mind, 
given the testimony of other witnesses, including letters such as from 
the Air Force Judge Advocate General recruiters and others, that Ms. 
Kagan--then Dean Kagan--did take these actions restricting the access 
of recruiters to the Harvard Law School?
  Mr. SESSIONS. There is absolutely no doubt about it. She openly sent 
an e-mail to all students and said she considered this policy that 
Congress adopted a moral injustice of the first order.
  On one occasion a military recruiter was apparently working in one 
building, and she spoke to a protest rally outside the next-door 
building, creating a climate that was certainly hostile to the good 
efforts of that military officer.
  Mr. McCAIN. But at the same time, then-Dean Kagan never asked to 
return the Federal funds that were flowing into the university?
  Mr. SESSIONS. No. In fact, it took the president of Harvard, Larry 
Summers--now President Obama's chief financial economic adviser; he was 
then president of Harvard--he had to reverse her decision when he was 
faced with the loss of Federal funds. The entire recruiting season, 
however, was lost before the military realized they were systematically 
being blocked. And they protested to the university, and finally she 
was overruled by the president.
  Mr. McCAIN. So then-Dean Kagan's actions, which she believed--and I 
respect her views that it was a moral imperative, and basically she 
chose what she viewed as a moral imperative--i.e., her opposition to 
the don't ask, don't tell law--as overriding compliance with the law, 
which then brings into question her qualifications and what her future 
actions will be as a member of the U.S. Supreme Court.
  Mr. SESSIONS. Absolutely. I think that is the essence of what 
happened. She eventually acknowledged that at no time was the Solomon 
Amendment not in force at Harvard when she was there.
  I know Senator McCain remembers that we passed four versions of the 
Solomon Amendment because every time one was passed, these law schools 
or others figured out a way to get around it. We finally wrote one they 
couldn't get around. This was systematic obstruction by universities 
that I think does not speak well of them.
  She also filed a brief with the Supreme Court attacking the law, and, 
as the Senator noted earlier, the Supreme Court rejected that brief 8 
to 0.
  Mr. McCAIN. So we are not discussing the merits or demerits of a law 
that was passed by Congress; we are discussing then-Dean Kagan's 
actions in opposition to this law which were absolutely in 
contradiction to the law.
  Mr. SESSIONS. Absolutely. Harvard had agreed to follow this law. Her 
predecessor as dean, Dean Clark, had agreed to do so. She seized upon 
an opportunity, without legal authority, to cease to comply with that 
law, denied the military full access to the campus as the law required, 
and eventually had to be reversed by the president of Harvard.
  Mr. McCAIN. Could I finally ask my colleague from Alabama, do you 
ever think the day will come when we have a nominee for the U.S. 
Supreme Court who didn't go to Harvard Law School? Maybe that might be 
healthy for America.
  Mr. SESSIONS. Well, you know, I think it might. If they have good 
judgment and are good people, I am not so worried where they come from. 
But when you have five people on the Supreme Court--and we will have 
that if she is confirmed--all from one of the boroughs of New York and 
most of them from Harvard or Yale, then I think it does raise questions 
about it. Maybe someone from Arizona could handle that job.
  Mr. McCAIN. Or perhaps Alabama.
  Mr. SESSIONS. Perhaps so.
  With regard to those young officers who were on the Harvard campus, 
my understanding of the military--and the Senator's experience is far 
greater than mine--is that many of those officers may well have just 
returned from Iraq or Afghanistan. You don't just serve all your career 
as a recruiter. I mean, they may have been combat officers or 
helicopter pilots or convoy leaders putting

[[Page 15116]]

their lives at risk. I wonder how the Senator thinks they felt when 
they faced this kind of discrimination.
  Mr. McCAIN. Frankly, I would say to my colleague from Alabama, 
obviously it is not related to Dean Kagan, but treatment at these elite 
institutions in the Ivy League, going all the way back to the Vietnam 
war--you know, they are entitled to their views and their opinions and 
their opposition, but to treat people who were designated by the 
President of the United States to be recruiters, to motivate other 
young men and women to join what I believe is a very honorable 
profession, most honorable, to put impediments in their way and 
intentionally block their ability to do so is something that I guess 
they will have to answer for in the future.
  I thank my colleague from Alabama for his leadership on this issue on 
the Judiciary Committee. He has worked tirelessly, night and day, on 
this issue for a long period of time now. I thank the Senator from 
Alabama for his outstanding work and leadership. I appreciate it. I 
know Americans do too.
  Mr. SESSIONS. I thank the Senator. I would note that one of the 
arguments that has been made--and my time is about up--has been that: 
Well, nothing was really done at Harvard. We asked a veterans group, a 
veterans organization to take care of all of these things we were 
refusing to allow the military to have through the Career Services 
Office.
  And this is what the veterans group said at the time. They sent an e-
mail to everybody on campus because it offended them that they were 
being asked to do a job that should have been done through the Career 
Services Office. They sent this e-mail:

       Given our tiny membership, meager budget, and lack of any 
     office space, we possess neither the time nor the resources 
     to routinely schedule campus rooms or advertise extensively 
     for outside organizations, as is the norm for most recruiting 
     events. . . . [Our effort] falls short of duplicating the 
     excellent assistance provided by the Office of Career 
     Services.

  So this argument has been repeatedly made: Don't worry about it; the 
veterans groups were taking care of all of this. It is bogus. It is 
incorrect. And she repeated that. I am not surprised to get that kind 
of statement from the White House spin doctors, but a nominee under 
oath----
  The PRESIDING OFFICER. The Republican time has expired.
  Mr. SESSIONS. Should not have made the statement she did in that 
regard.
  I yield the floor.
  Mr. LEAHY. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Franken). Without objection, it is so 
ordered.
  Mr. LEAHY. Mr. President, on July 1 of this year, the Judiciary 
Committee received a letter from LT Zachary W. Prager. He serves in the 
U.S. Navy Judge Advocate General's Corps. He writes:

       I was a student at Harvard Law School under Ms. Kagan and 
     commissioned into the Navy. . . . I am grateful to Dean Kagan 
     for her leadership on military recruiting, as well as the 
     myriad of other positive impacts that she had on my law 
     school experience. I would not be serving today--

  Referring to the military--

     without it. She has earned my most heartfelt support for her 
     nomination.

  This is a member of the military who felt Dean Kagan helped greatly 
with him joining the military.
  As the dean of Harvard Law School, Elena Kagan worked hard to find 
ways to both enforce the school's nondiscrimination policy and allow 
the military to recruit Harvard students.
  Mr. President, I ask unanimous consent that Lieutenant Prager's 
letter be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

     Hon. Patrick J. Leahy,
     Chairman, Committee on the Judiciary,
     Washington, DC.
       Dear Chairman Leahy: I write in support of Solicitor 
     General Elena Kagan's nomination to the United States Supreme 
     Court. I am a lieutenant in the U.S. Navy Judge Advocate 
     General's Corps. I was a student at Harvard Law School under 
     Ms. Kagan and commissioned into the Navy upon graduation in 
     2007. Without Ms. Kagan's leadership and evenhandedness as 
     Dean, I would not have joined the military,
       Dean Kagan set a standard at Harvard of respect for 
     military servicemembers, while still expressing her 
     opposition to the Don't Ask, Don't Tell policy. She made it 
     clear that Harvard Law School would fight the policy, but 
     never impugn the soldiers, sailors and airmen who came to 
     Harvard to recruit. Her guidance on this issue permeated 
     throughout her administration, from the Dean of Student's 
     Office to the Office of Career Services. Like many students, 
     I was reticent to join an institution that practices overt 
     discrimination. The environment they established opened the 
     door for me to consider the military as a career path. Their 
     example helped clear my reservations.
       My decision to join the Navy was welcomed by Dean Kagan's 
     administration. Military service was valued the same as any 
     other public interest job. At a dinner to honor those of us 
     entering public service, I dined next to public defenders, 
     federal prosecutors and human rights activists. Notably, I 
     now serve in the Navy alongside another classmate, and alumni 
     from my class serve in the Marine Corps and Army Judge 
     Advocate General's Corps.
       I am proud to serve in the Navy and I love my job. I 
     completed a deployment to Iraq and leave soon for my next 
     tour overseas in Japan. I am grateful to Dean Kagan for her 
     leadership on military recruiting, as well as the myriad of 
     other positive impacts that she had on my law school 
     experience. I would not be serving today without it. She has 
     earned my most heartfelt support for her nomination.
           Very Respectfully,
                                                   Zachary Prager.

  Mr. LEAHY. Mr. President, on that subject, I would like to note a 
letter of support the Judiciary Committee received from 1LT David 
Tressler. He was at Harvard Law School when Solicitor General Kagan 
served there as dean. He is currently serving in harm's way in 
Afghanistan, and he strongly supports Solicitor General Kagan for this 
nomination.
  Here is what the lieutenant writes:

       I believe that, while dean of Harvard Law School, [Elena 
     Kagan] adequately proved her support for those who had 
     served, were currently serving, and all those who felt called 
     to serve, including those like me who joined upon graduation 
     as well as those patriots who were not permitted to do so 
     under the policy of ``Don't Ask, Don't Tell.''

  Mr. President, I ask unanimous consent that Lieutenant Tressler's 
letter of support be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                    June 30, 2010.
     Re: Nomination of Elena Kagan.

     Hon. Patrick Leahy,
     Chairman, Senate Committee on the Judiciary, Dirksen Senate 
         Office Bldg., Washington, DC.
     Hon. Jeff Sessions,
     Ranking Member, Senate Committee on the Judiciary, Dirksen 
         Senate Office Bldg., Washington, DC.
       Dear Chairman Leahy and Senator Sessions: From Afghanistan 
     I have read about the criticism being leveled at Elena Kagan 
     during the confirmation hearings for her nomination as an 
     Associate Justice of the Supreme Court over her decisions and 
     positions while dean of Harvard Law School with regard to 
     military recruiters on campus and the military's ``Don't Ask, 
     Don't Tell'' (DADT) policy. Senator Sessions issued a 
     statement that Kagan ``stood in the way of devoted, 
     hardworking military recruiters,'' and Senator Jon Kyl said 
     that ``[h]er tenure . . . was marred, in my view, by her 
     decision to punish the military and would-be recruits for a 
     policy--`don't ask, don't tell' and the Solomon Amendment. . 
     . .'' I am one of those recruits and write to share with the 
     Committee my experience as a law student at Harvard between 
     2004 and 2006 when the controversy over military recruiters 
     on campus unfolded. Shortly after my 2006 graduation I 
     enlisted in the Army Reserve and I am currently serving as a 
     civil affairs officer at a remote combat outpost in eastern 
     Afghanistan.
       I am focused on my mission here, but as a citizen, lawyer, 
     and military officer who swore to defend the Constitution, I 
     care also about the integrity of the Supreme Court selection 
     process and disagree with efforts to paint Elena Kagan as 
     unsupportive of the military.
       Like most Americans I want to see a nomination process 
     focused on Kagan's qualifications and judicial philosophy, 
     not on empty political theater. The details and chronology of 
     her decisions with regard to military recruiters on campus 
     have been well-reported

[[Page 15117]]

     by the media and described again by Ms. Kagan, but I will 
     recount them briefly from my experience as a student who was 
     there at the time considering enlistment in the military. I 
     remember her decisions and the tenor of her messages about 
     the military, DADT, and military recruiting.
       There was a legitimate legal debate taking place in the 
     courts over the Solomon Amendment, and when court decisions 
     allowed it in 2004, Kagan made a decision to uphold the 
     school's anti-discrimination policy. Military recruiters were 
     never barred from campus. During the brief period when 
     recruiters were not given access to students officially 
     through the law school's Office of Career Services, they 
     still had access to students on campus through other means. 
     Immediately following this period, in 2005 more graduating 
     students joined the military than any year this decade, 
     according to the Director of the Law School's Office of 
     Career Services.
       Kagan's positions on the issue were not anti-military and 
     did not discriminate against members or potential recruits of 
     the military. Nor do I believe that they denied the military 
     much-needed recruits in a time of war. There are only a few 
     of us each year who joined the military while attending, or 
     after graduation from, Harvard Law. Kagan's decision to 
     uphold the school's anti-discrimination policy for a brief 
     period of time and express disagreement with DADT did not 
     prevent us from talking with recruiters and joining.
       I heard Kagan speak several times about this issue. She 
     always expressed her support for those who serve in the 
     military and encouraged students to consider military 
     service. It was clear she was trying to balance the 
     institution's values underlying its antidiscrimination policy 
     with her genuine support for those who serve or were 
     considering service in the military. Indeed, her sense of 
     DADT's injustice seemed to grow out of her belief in the 
     importance and value of military service. I remember that she 
     repeatedly said as much while dean. More recently while 
     speaking to cadets at West Point, she explained that, ``I 
     personally believe that the exclusion of gays and lesbians 
     from the military is both unjust and unwise. I wish devoutly 
     that these Americans too could join this noblest of all 
     professions and serve their country in this most important of 
     all ways.''
       I believe she was right. But Senator Sessions recently 
     suggested, referring to Ms. Kagan's positions, that ``to some 
     in the elite, progressive circles of academia, it is 
     acceptable to discriminate against the patriots who fight and 
     die for our freedoms.'' With due respect, as a Soldier who 
     serves side by side in a hostile combat zone with patriots 
     who are subjected to the discrimination imposed by DADT 
     policy, I see it differently.
       Like most servicemembers serving in a combat theater, when 
     we go outside the wire, I care more about the fitness, 
     experience, and tactical proficiency of the Soldiers around 
     me than who they might want to date or marry when they get 
     home. Out here on the ground in Afghanistan, when we are 
     attacked--which happens often at and around my outpost--it 
     does not matter who is straight or gay any more than it 
     matters who is white or black or who among us can drink 
     legally and who is still underage. We come under fire 
     together. And when it's over, we pick ourselves up and 
     continue on with the mission together. Yet contrary to the 
     military's code of leaving no comrade behind, DADT continues 
     to selectively discriminate against some of these 
     servicemembers who put their lives at risk for this country.
       Nevertheless, reasonable, well-intentioned and equally 
     honorable people disagree about the wisdom of DADT. To attack 
     Ms. Kagan for a principled position she took as a law school 
     dean that had no practical effect on military recruitment 
     looks, from where I stand, like a political distraction. What 
     the country deserves instead is a substantive debate over 
     Elena Kagan's judicial philosophy and her qualifications to 
     interpret the Constitution and decide cases as a member of 
     this nation's highest court.
       I urge you to maintain that focus for the remainder of the 
     hearings and refrain from further hyperbole questioning Ms. 
     Kagan's support for the men and women of the U.S. military. I 
     believe that, while dean of Harvard Law School, she 
     adequately proved her support for those who had served, were 
     currently serving, and all those who felt called to serve, 
     including those like me who joined upon graduation as well as 
     those patriots who were not permitted to do so under the 
     policy of ``Don't Ask, Don't Tell.''
           Respectfully,
     David M. Tressler,
       First Lieutenant, Civil Affairs, United States Army 
     Reserve, Khost Province, Afghanistan.

  Mr. LEAHY. I might say what a red herring this question is of where a 
recruiter's office is. If you have people who want to serve in the 
military, they can usually find them.
  Our youngest son joined the U.S. Marine Corps directly out of high 
school--a brilliant young man who wanted to serve his country. So I 
asked him again the other day, just to be sure.
  I said: Mark, now, was that recruiter at the high school or on 
campus?
  He said: Oh, no, Dad. We didn't have anything like that.
  I said: How did you find it?
  He said: Well, I got out the telephone book. I looked up the address: 
downtown Burlington. He told me exactly where it was. I know the area. 
I walked down there and joined the U.S. Marine Corps.
  Frankly, and obviously, my wife and I are very proud of him. He 
served honorably. I cannot help but think for just about everybody I 
know who joined the military, if you asked them: How did you do this, 
they would say: Oh, I checked where the recruiter was and went and 
joined or I was at an event somewhere where somebody was speaking, and 
I heard about it and joined.
  So this is probably the biggest red herring. I have been here for 
debates and votes on every single member currently serving on the 
Supreme Court and some who have since retired from the Supreme Court. I 
have heard a few red herrings over the years, never one like this.
  Mr. President, during the 3 months that this nomination has been 
pending, Senators have made many statements about Solicitor General 
Elena Kagan. I wish to commend the statements made yesterday and today 
by the majority leader, Senator Cardin, Senator 
Feinstein, Senator Kohl, Senator Franken, Senator Durbin, Senator 
Lieberman, Senator Dorgan, Senator Gillibrand, Senator Shaheen, Senator 
Klobuchar, Senator Hagan, Senator Mikulski, Senator Bingaman, Senator 
Carper, Senator Levin, Senator Whitehouse, Senator Graham, Senator 
Burris, Senator Specter, Senator Collins, and Senator Boxer. They were 
outstanding in describing the qualifications of a nominee who should be 
confirmed with a strong bipartisan majority.
  If I might, seeing the distinguished Presiding Officer, I wish to 
acknowledge the extraordinary contributions of his colleague, Senator 
Klobuchar. She spoke eloquently. She organized a group of Senators, and 
she persevered, despite the personal loss she suffered this week.
  When President Obama set out to find a well-qualified nominee to 
replace retiring Justice John Paul Stevens, he said he would ``seek 
someone who understands that justice isn't about some abstract legal 
theory or footnote in a casebook. It's also about how laws affect the 
daily realities of people's lives--whether they can make a living and 
care for their families, whether they feel safe in their homes and 
welcome in our nation.'' In introducing Solicitor General Kagan as his 
Supreme Court nominee, President Obama, whose 49th birthday is today, 
praised her ``understanding of the law, not as an intellectual exercise 
or words on a page, but as it affects the lives of ordinary people.''
  President Obama is not alone in recognizing the value of judges and 
Justices who are aware that their duties require them to understand how 
the law works and the effects it has in the real world. Within the last 
few months, two Republican appointees to the Supreme Court have made 
the same point. Justice Anthony Kennedy told a joint meeting of the 
Palm Beach and Palm Beach County Bar Associations that, as a Justice, 
``You certainly can't formulate principles without being aware of where 
those principles will take you, what their consequences will be. Law is 
a human exercise and if it ceases to be that it does not deserve the 
name law.''
  In addition, Justice David Souter, who retired last year and was 
succeeded by Justice Sotomayor, delivered a thoughtful commencement 
address at Harvard University. He spoke about judging, and explained 
why thoughtful judging requires grappling with the complexity of 
constitutional questions in a way that takes the entire Constitution 
into account. He spoke about the need to ``keep the constitutional 
promises our nation has made.'' Justice Souter concluded:

       If we cannot share every intellectual assumption that 
     formed the minds of those who framed that charter, we can 
     still address

[[Page 15118]]

     the constitutional uncertainties the way they must have 
     envisioned, by relying on reason, by respecting all the words 
     the Framers wrote, by facing facts, and by seeking to 
     understand their meaning for living people.

  Justice Souter understood the real world impact of the Supreme 
Court's decisions, as I believe does his successor, Justice Sotomayor. 
Across a range of fields including bankruptcy, the fourth amendment, 
statutory construction, and campaign finance, Justice Sotomayor has 
written and joined opinions that have paid close attention to the 
significance of the facts in the record, to the considered and 
longstanding judgments of the Congress, to the arguments on each side, 
and to Supreme Court precedent. In doing this she has shown an 
adherence to the rule of law and an appreciation for the real world 
ramifications of the Supreme Court's decisions.
  Given America's social and technological development since we were a 
young nation, interpreting the Constitution's broad language requires 
judges and Justices to exercise judgment. In the real world, there are 
complex cases with no easy answers. In some instances, as Justice 
Souter pointed out in his recent commencement address, different 
aspects of the Constitution point in different directions, toward 
different results, and they need to be reconciled. Acknowledging these 
inherent tensions is not only mainstream, it is as old as the 
Constitution, and it has been evident throughout American history, from 
Chief Justice John Marshall in the landmark case of McCulloch v. 
Maryland to Justice Breyer this past June in United States v. Comstock.
  Chief Justice John Marshall wrote for a unanimous Supreme Court in 
the landmark case of McCulloch v. Maryland in 1819, writing that for 
the Constitution to contain detailed delineation of its meaning ``would 
partake of the prolixity of a legal code, and could scarcely be 
embraced by the human mind.'' He understood, as someone who served with 
Washington, Jefferson, Adams and Madison, that its terms provide ``only 
its great outlines'' and that its application in various circumstances 
would need to be deduced. The necessary and proper clause of the 
Constitution entrusts to Congress the legislative power ``to make all 
laws which shall be necessary and proper for carrying into execution'' 
the enumerated legislative powers of article I, section 8, of our 
Constitution as well as ``all other powers vested by this Constitution 
in the Government of the United States.'' In construing it, Chief 
Justice Marshall explained that the expansion clause ``is in a 
constitution, intended to endure for ages to come, and consequently, to 
be adapted to the various crises of human affairs.'' He went on to 
declare how, in accordance with a proper understanding of the necessary 
and proper clause and the Constitution, Congress should not by judicial 
fiat 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 stagnant 
construction of the Constitution.
  McCulloch v. Maryland was the Supreme Court's first interpretation of 
the necessary and proper clause. The most recent was this past June, in 
United States v. Comstock. That case upheld the power of Congress to 
enact the Adam Walsh Child Protection and Safety Act, which included 
provisions authorizing civil commitment of sexually dangerous Federal 
prisoners who had engaged in sexually violent conduct or child 
molestation and were mentally ill. Quoting Chief Justice Marshall's 
language from McCulloch, Justice Breyer wrote in an opinion joined by a 
majority of the Supreme Court, including Chief Justice Roberts, about 
the ``foresight'' of the Framers who drafted a Constitution capable of 
resilience and adaptable to new developments and conditions.
  Justice Breyer's judicial philosophy is well known. A few years ago, 
he authored Active Liberty in which he discussed how the Constitution 
and constitutional decisionmaking protects our freedoms and, in 
particular, the role of the American people in our democratic 
government. When he writes about how our constitutional values apply to 
new subjects ``with which the framers were not familiar,'' he looks to 
be faithful to the purposes of the Constitution and aware of the 
consequences of various decisions.
  During the Civil War, in its 1863 Prize Cases decision, the Supreme 
Court upheld the constitutionality of President Lincoln's decision to 
blockade southern ports before a formal congressional declaration of 
war against the Confederacy. Justice Grier explained that it was no 
less a war because it was a rebellion against the lawful authority of 
the United States. Noting that Great Britain and other European nations 
had declared their neutrality in the conflict, he wrote that the Court 
should not be asked ``to affect a technical ignorance of the existence 
of a war, which all the world acknowledges to be the greatest civil war 
known in the history of the human race.'' That, too, was judging in the 
real world.
  In the same way, the Supreme Court decided more recently in Rasul v. 
Bush, that there was jurisdiction to decide claims under the Great Writ 
securing our freedom, the writ of habeas corpus, from those in U.S. 
custody being held in Guantanamo. Justice Stevens, a veteran of World 
War II recognized that the United States exercised full and exclusive 
authority at Guantanamo if not ultimate, territorial sovereignty. The 
ploy by which the Bush administration had attempted to circumvent all 
judicial review of its actions was rejected, recognizing that ours is a 
government of checks and balances.
  Examples of real world judging abound in the Supreme Court's 
decisions upholding our individual freedoms.
  Real world judging is precisely what the Supreme Court did in its 
most famous and admired modern decision in Brown v. Board of 
Education--a landmark decision that ended the scourge and the shame of 
segregation in this country. I recently saw the marvelous production of 
the George Stevens, Jr., one-man play, ``Thurgood,'' starring Laurence 
Fishburne. It was an extraordinary evening that focused on one of the 
great legal giants of America. In fact, at one point, Justice 
Marshall--the actor playing Justice Marshall--reads a few lines from 
the unanimous decision of the Supreme Court in 1954 that declared 
racial discrimination in education unconstitutional. Chief Justice 
Warren had written:

       In approaching this problem, we cannot turn the clock back 
     to 1868, when the [Fourteenth] Amendment was adopted or even 
     to 1896 when Plessy v. Ferguson was written. We must consider 
     public education in the light of its full development and its 
     present place in American life throughout the Nation. Only in 
     this way can it be determined if segregation in public 
     schools deprives these plaintiffs of the equal protection of 
     the laws.

  Understanding the facts in context, the entire Court helped to end a 
discriminatory chapter in our history, and they did it unanimously, the 
Court, made up of people such as a former Senator from Alabama who had 
been a member of the Ku Klux Klan, to Earl Warren, a former Attorney 
General and Governor, and just about every other possible permeation in 
between.
  The Supreme Court did not limit itself to the Constitution as it was 
written in 1787. At that point in our early history, ``We the People'' 
did not include Native Americans or African-American slaves, and our 
laws failed to accord half the population equality or the right to vote 
because they were women. Do any one of us want to go back to 1787 and 
say this should be the rules of the game?
  Real world judging takes into account that the world and our 
Constitution have changed from 1788, beginning with the Bill of Rights. 
It takes into account not only the Civil War but the Civil War 
amendments to the Constitution, adopted between 1865 and 1870, and 
every amendment adopted since then.
  Would anyone today, even Justice Scalia, read the eighth amendment's 
limitation against cruel and unusual punishment to allow the cutting 
off of ears, a practice employed in colonial times? Of course not, 
because the

[[Page 15119]]

 standard of what is cruel and unusual punishment was not frozen for 
all time in 1788. Does anyone dispute that most of the Bill of Rights 
is correctly applied today to the States through the due process clause 
of the 14th amendment? Our Bill of Rights freedoms were expressed only 
as limitations on the authority of Congress. Does anyone think the 
equal protection clause of the 14th amendment cannot be read to 
prohibit gender discrimination? Remember, when it was written, the 
drafters obviously did not have women in mind. But does anybody think 
this does not make it very clear that our laws should apply equally to 
men and women today?
  The Constitution mentions our Armed Forces, but there was no Air 
Force when the Constitution was written. Does anyone doubt that our Air 
Force is encompassed by the Constitution, even though no Framer had 
them in mind when the Constitution was being ratified? Of course not.
  Likewise, in its interpretation of the commerce clause and the 
intellectual property provisions providing copyright and patent 
protection for writings and discoveries, the Supreme Court has sensibly 
applied our constitutional principles to the inventions, creations, and 
conditions of the 21st century. Thomas Jefferson and James Madison may 
have mastered the quill pen, but they did not envision modern computers 
or phones or smart phones or satellites.
  The first amendment expressly protects freedom of speech and the 
press, but the Supreme Court has applied it, without controversy, to 
things that did not exist when the first amendment was written, such as 
television, radio, and the Internet. Our Constitution was written 
before Americans had ventured into cyberspace or outer space. It was 
written before automobiles or airplanes or even steamboats. Yet the 
language and principles of the Constitution remain the same as it is 
applied to new developments. Our privacy protection from the fourth 
amendment has been tested, but it has survived because the Supreme 
Court did not limit our freedom to tangible things and physical 
intrusions but decided to ensure privacy consistent with the principles 
embodied in the Constitution.
  There are unfortunately occasions in which the current conservative 
activist majority on the Supreme Court departs from the clear meaning 
or purpose of the law and even its own precedents. One such case, the 
Ledbetter case, would have perpetuated unequal pay for women, by using 
a rigid, cramped reading of a statute which defied congressional 
intent. We corrected that decision by statute. Now there is the Gross 
case that would make age discrimination virtually impossible to prove. 
That erroneous decision, which disregarded the court's own precedent, 
should also be corrected.
  And, of course, the Citizens United case wrongly reversed 100 years 
of legal developments to unleash corporate influence in elections. A 
number of us are trying to correct some of the excesses of that 
decision with the DISCLOSE Act, but Republicans have filibustered that 
effort, and will not allow the Senate to consider corrective 
legislation to add transparency to corporate electioneering.
  Frankly, I am left to wonder whether some of the current members of 
the conservative activist majority on the Supreme Court would have 
supported the decision in Brown v. Board of Education had they been 
members of the Supreme Court in 1954. They turned that decision upside 
down with their decision just a few years ago in the Seattle school 
desegregation case. Theirs was an ideological decision not based on 
that magnificent precedent, but undermining it.
  It took a Supreme Court that, in 1954, understood the real world to 
see that the seemingly fair-sounding doctrine of ``separate but equal'' 
was in reality a straightjacket of inequality and offensive to the 
Constitution. All Americans have come to respect the Supreme Court's 
unanimous rejection of racial discrimination and inequality in Brown v. 
Board of Education. That was a case about the real world impact of a 
legal doctrine.
  But just 3 years ago, in the Seattle school desegregation case, we 
saw a narrowly divided Supreme Court undercut the heart of the landmark 
Brown v. Board decision. The Seattle school district valued racial 
diversity, and was voluntarily trying to maintain diversity in its 
schools. By a 5-4 vote of conservative activists on the Supreme Court, 
this voluntary program was prohibited. That decision broke with more 
than a half century of equal protection jurisprudence and set back the 
long struggle for equality.
  Justice Stevens wrote in dissent that the Chief Justice's opinion 
twisted Brown v. Board in a ``cruelly ironic'' way. Most Americans 
recognize that there is a crucial difference between a community that 
does its best to ensure that its schools include children of all races, 
and one that prevents children of some races from attending certain 
schools. Experience in the real world tells us that. Justice Breyer's 
dissent criticized the Chief Justice's opinion as applying an ``overly 
theoretical approach to case law, an approach that emphasizes rigid 
distinctions . . . in a way that serves to mask the radical nature of 
today's decision. Law is not an exercise in mathematical logic.''
  Chief Justice Warren, a Justice who came to the Supreme Court with 
real world experience as a State attorney general and Governor, 
recognized the power of a unanimous decision in Brown v. Board. The 
Roberts Court, in its narrow desegregation decision 2 years ago, 
ignored the real world experience of millions of Americans, and showed 
that it would depart from even the most hallowed precedents of the 
Supreme Court.
  Considering how the law matters to people is a lesson that Elena 
Kagan learned early in her legal career when she clerked for Justice 
Thurgood Marshall. In her 1993 remarks upon the death of Justice 
Marshall, she observed: ``Above all, he had the great lawyer's talent . 
. . for pinpointing a case's critical fact or core issue. That trait, I 
think, resulted from his understanding of the pragmatic--of the way in 
which the law acted on people's lives.''
  If confirmed, Elena Kagan will be the third member of the current 
Supreme Court to have had experience working in all three branches of 
the government prior to being nominated. Some criticize her work during 
the Clinton administration as political. I suggest that a fair reading 
of her papers indicates that she has the ability to take many factors 
into account in analyzing legal problems and that her skills include 
practicality, principle, and pragmatism. These were all used in their 
service to the American people by Justice O'Connor, Justice Souter, and 
Justice Stevens--each one nominated by a Republican President, each one 
being Justices I voted for. There is more to serving the country as a 
Supreme Court Justice.
  I reject the ideological litmus test that Senate Republicans would 
apply to Supreme Court nominees. Unlike those on the right who drove 
President Bush to withdraw his nomination of Harriet Miers and those 
who opposed Justice Sotomayor, I do not require every Supreme Court 
nominee to swear fealty to the judicial approach and outcomes ordained 
by adhering to the narrow views of Justice Scalia and Justice Thomas. I 
expect judges and Justices to faithfully interpret the Constitution and 
apply the law, and also to look to the legislative intent of our laws 
and to consider the consequences of their decisions. I hope that judges 
and Justices will respect the will of the people, as reflected in the 
actions of their democratically elected representatives in Congress, 
and serve as a check on an overreaching Executive.
  It seems some want the assurance that a nominee to the Supreme Court 
will rule the way they want, so they will get the end results they want 
in cases before the Supreme Court. Lack of such assurances was why they 
vetoed President Bush's nomination of Harriet Miers, only the third 
woman to be nominated to the Supreme Court, and the only one not to be 
confirmed. They forced Ms. Miers to withdraw even while Democrats were 
preparing to proceed with her hearing. They do not want an independent 
judiciary. They demand Justices who will guarantee the results they 
want. That is

[[Page 15120]]

their ideological litmus test. As critics level complaints against 
Elena Kagan, I suspect the real basis of that discontent is that the 
nominee will not guarantee a desired litigation outcome. That is not 
what I want. I want an independent judiciary. I do not want a judiciary 
that will tell me way in advance exactly how they will rule. I want 
them independent.
  Of course, that is not judging. That is not even umpiring. That is 
fixing the game, and that is wrong. It is conservative activism plain 
and simple. It is only recently that some Republican Senators conceded 
that judicial philosophy matters. I hope this means that they will 
abandon the false premise that all a Justice does is mechanically apply 
obvious legal dictates to reach preordained outcomes. Solicitor General 
Kagan was right to reject that as ``robotic.''
  It is the kind of conservative activism we saw when the Supreme Court 
in the Ledbetter case disregarded the plain language and purpose of 
title VII. It is the kind of activism we saw when, this past January, a 
conservative activist majority turned its back on the Supreme Court's 
own precedents, the considered judgment of Congress, the interests of 
the American people and our long history of limiting corporate 
influence in elections in their Citizens United decision.
  We can do better than that. In fact, we always have done better than 
that. In reality, we can expect Justices who are committed to doing the 
hard work of judging required of the Supreme Court. In practice, this 
means we want Justices who pay close attention to the facts in every 
case that comes before them, to the arguments on both sides, to the 
particular language and purposes of the statutes they are charged with 
interpreting, to their own precedents, and to the traditions and 
longstanding historical practices of this Nation.
  Applying these factors would reflect an appreciation for the real 
world ramifications of their decisions. Judging is not just textual and 
it is not just automatic. If it were, we could have a computer do the 
judging. If it were, important decisions would not be made 5 to 4. A 
Supreme Court Justice is required to exercise judgment but should 
appreciate the proper role of the courts in our democracy.
  The resilience of the Constitution is that its great concepts, these 
wonderful phrases in the Constitution, are not self-executing. There 
are constitutional values that need to be applied. Cases often involve 
competing constitutional values. So when the hard cases come before the 
Court in the real world, we want--and we actually need--Justices who 
have the good sense to appreciate the significance of the facts of the 
case in front of them as well as the ramifications of their decisions 
in human and institutional terms.
  I expect in close cases that hard-working and honest Justices will 
sometimes disagree about results. I don't expect to agree with every 
decision of every Justice. I understand that. I support judicial 
independence. I noted I voted for Justice Stevens and Justice O'Connor 
and Justice Souter, who were all nominees of Republican Presidents. I 
knew I would not agree with all of their decisions but I respected 
their approach to the law and their independence.
  A few days before Independence Day, the Senate Judiciary Committee 
was able to complete its hearing on the nomination of Elena Kagan to be 
an Associate Justice of the Supreme Court of the United States. After 
opening statements on Monday afternoon, June 28, we were able to 
complete the questioning of the nominee on Tuesday, June 29, and 
Wednesday, June 30. We proceeded for 10 hours on Tuesday, and were able 
to complete most of the first round. We returned on Wednesday to 
complete the remainder of the first round, a second round, and a third 
round for those who requested additional time to question Solicitor 
General Kagan. We also held the traditional closed session and held the 
hearing record open for members of the committee to submit additional 
questions to Solicitor General Kagan.
  Out of respect for the Senate observances honoring Senator Byrd, we 
reconvened at 4 p.m. on Thursday, July 1. We heard testimony from 
representatives of the American Bar Association, and 14 members of the 
public invited by the Republican minority and 10 invited by the 
majority. I especially thank Senators Cardin, Kaufman, and Schumer for 
sharing the duty of chairing our proceedings on Thursday, which 
extended past 8 p.m., long after the last Senate vote of the week.
  In my opening statement at the hearing, I urged the nominee to engage 
with the Senators and she was, in fact, engaging. I also urged 
Solicitor General Kagan to answer our questions about her judicial 
philosophy. I think that she was more responsive than other recent 
nominees, and that she provided more information than was shared at 
other Supreme Court hearings in which I have participated. Of course, 
some of the questions attempted to solicit indications as to how she 
would rule in cases likely to come before the Supreme Court. Solicitor 
General Kagan appropriately avoided such attempts but displayed a keen 
understanding of the complex set of legal issues that come before our 
highest Court.
  I was disappointed that one line of attack against Elena Kagan was to 
disparage Thurgood Marshall. I appreciated the statements of Senators 
Cardin and Durbin in defense of this towering figure of American law. I 
commend the columns written by Stephanie Jones, the daughter of Judge 
Nathan Jones; Frank Rich; Dana Millbank; Margaret Carlson; Carol 
Steiker; and, of course, Thurgood Marshall, Jr. In addition, editorial 
pages, blogs and reports rejected this ill-advised efforts. It is a 
strength and a blessing that Elena Kagan clerked for Justice Thurgood 
Marshall.
  I remember Justice Marshall. The caricature of him by some at the 
Kagan confirmation hearing was wrong. Knowing him, I suspect that when 
he told his clerks that his philosophy was to do the right thing and 
let the law catch up, he was most likely referring to his precedent-
setting career as the leading advocate of the time and not strictly 
defining a judicial philosophy or approach. To the contrary, in Elena 
Kagan's tribute to Justice Marshall in 1993 in the Texas Law Review, 
she recalled his commitment to the rule of law. She described, as did 
Carol Steiker in her column in The National Law Journal, how Justice 
Marshall's law clerks had tried to get him to rely on notions of 
fairness rather than the strict reading of the law to allow an appeal 
to proceed on a discrimination claim. She wrote that the 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 Marshall reminded his clerks that the existence of rules and 
the rule of law is the best protection for all, including the least 
powerful. Justice Thurgood Marshall was a man of the law in the highest 
sense. He understood the Constitution's promise of equality to his 
core. He relied on the law and the American justice system to overcome 
racial discrimination.
  So I was deeply 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 
that they would vote against Thurgood Marshall's confirmation to the 
Supreme Court. He was disparaged at his confirmation hearing to the 
Supreme Court. His confirmation to the United States Court of Appeals 
to the Second Circuit, to be Solicitor General, and to the U.S. Supreme 
Court were delayed and made difficult at the time, but I had hoped and 
thought those dark days were behind us.
  The attacks on Justice Marshall during Elena Kagan's confirmation 
hearing were particularly striking. On the first day of the hearings 
Republican

[[Page 15121]]

members of the Judiciary Committee mentioned Justice Marshall 35 times. 
They did not do so to praise him or his contributions to America's 
historic effort to overcome racial discrimination. Rather, they 
pilloried him as if someone who functioned outside the mainstream of 
American constitutional law. In fact, he did as much as any American in 
the last century to make sure America lived up to its promise. He moved 
America forward, toward a more perfect union. On that day, however, 
they were trying to penalize Elena Kagan because as a young lawyer she 
clerked for him on the U.S. Supreme Court.
  Two current Justices also clerked for Supreme Court Justices--Chief 
Justice John Roberts and Justice Stephen Breyer. That Chief Justice 
Roberts clerked for then-Justice Rehnquist was viewed by Republicans as 
a credential and a positive just a few years ago. Judge Douglas 
Ginsburg of the DC Circuit and Judge Ralph Winter of the Second Circuit 
each clerked for Justice Marshall as young lawyers. They were not 
criticized during their confirmation hearings for having done so; far 
from it.
  Thurgood Marshall was perhaps the most influential lawyer of the 20th 
century. He dedicated his life to the rule of law. He, and the 
dedicated and talented team of lawyers with whom he worked at the 
NAACP, did not engage in violent protests but sought to ensure the full 
equality of all Americans by appeal to American justice and our 
Constitution. They brilliantly and courageously argued their claims on 
behalf of their clients. They bettered America's soul. Beginning in the 
late 1930s, their cases eventually led to the overturning of the 
misguided 1896 decision in Plessy v. Ferguson and the dismantling of 
State-mandated segregation of the races in public facilities. When the 
Supreme Court unanimously agreed with Thurgood Marshall's argument in 
the landmark case of Brown v. Board of Education that State-mandated 
segregation of the races in public school violated the Constitution, it 
was vindication of the rule of law. Brown was one of the 29 cases that 
Thurgood Marshall won out of the 32 cases that he argued as a Supreme 
Court advocate. Justice Marshall's record of advocacy before the 
Supreme is unsurpassed and not likely to ever be matched.
  Thurgood Marshall's life was lived in the law, not outside it. As a 
Justice, he was the embodiment of what the rule of law can achieve. He 
was a giant in the law. For good and enduring reason, Thurgood Marshall 
is a hero not just to Solicitor General Kagan, but to countless 
American lawyers, judges, Presidents, and hardworking Americans. He 
should be a hero to us all.
  I am concerned that the younger Americans who waited in line to 
attend our confirmation hearings or who tuned in to watch them may not 
understand what the mischaracterization of Justice Marshall by some at 
our hearing how important it was four decades ago for President Lyndon 
Johnson to nominate then-Solicitor General Marshall, to the Supreme 
Court. As President Johnson said at the time, ``He is the best 
qualified by training and by valuable service to the country. I believe 
it is the right thing to do, the right time to do it, the right 
place.''
  Justices Sandra Day O'Connor, Antonin Scalia, and Clarence Thomas, 
all Republican appointees, have acknowledged Justice Marshall's 
greatness as a lawyer and judge. Shortly after Justice Marshall's 
passing, Justice O'Connor, who had served on the Court with him, wrote:

       His was the eye of a lawyer who had seen the deepest wounds 
     in the social fabric and used law to help heal them. His was 
     the ear of the counselor who understood the vulnerabilities 
     of the accused and established safeguards for their 
     protection. His was the mouth of a man who knew the anguish 
     of the silenced and gave them voice.

  Justice Scalia remarked that Justice Marshall ``could be . . . a 
persuasive force just sitting there. . . . He was always in the 
conference a visible representation of a past that we wanted to get 
away from and you knew that, as a private lawyer, he had done so much 
to undo racism or at least its manifestation in and through 
government.'' During his own confirmation proceedings, Justice Thomas 
praised Justice Marshall, as ``one of the greatest architects of the 
legal battles to open doors that seemed so hopelessly and permanently 
sealed and to knock down barriers that seemed so insurmountable to 
those of us in Pin Point, Georgia.'' These Justices recognize and 
respect Justice Thurgood Marshall and his enduring impact on American 
law. He made this a stronger and more inclusive Nation.
  At least two Republican members of the Senate Judiciary Committee 
recently said that they are not sure whether, if given the chance, they 
would vote to confirm Thurgood Marshall as a Justice on the Supreme 
Court. Though he had to face humiliating questioning during his own 
confirmation hearings for the Court, he was confirmed by a vote of 69 
to 11 in 1967. I would have hoped that as a nation we would have 
progressed to acknowledge Thurgood Marshall's fitness to serve on the 
Supreme Court but I am sad to acknowledge that is not so. If there are 
Republicans who would now vote against the nomination of Thurgood 
Marshall to the Supreme Court, it is a sign of just how far the former 
party of Lincoln has changed and just how much some would like to undo 
the progress made over the last century.
  We 100 men and women in this body are the ones who are charged with 
giving our advice and consent on Supreme Court nominations. We 100 
stand in the shoes of 300 million Americans, and we should consider 
whether those nominees have the skills and the temperament and the good 
sense to independently assess in every case the significance of the 
facts and how the law applies to those facts. I believe Elena Kagan 
does meet that test.
  The more judges appreciate the real world impact their decisions have 
on hard-working Americans, I believe the more confidence the American 
people have in their courts, and I think it is important for the 
American people in a democracy to have confidence in their courts. I 
have been in the Senate now with seven Presidents. I have urged 
Presidents, both Democratic and Republican, to nominate people from 
outside the judicial monastery because I think real world experience is 
helpful to the process. The American people live not in an abstract 
ivory tower world but a real world with great challenges.
  We have a guiding charter that provides all Americans great promise. 
The Supreme Court functions in the real world that affects all 
Americans. Judicial nominees need to appreciate that simple, undeniable 
fact, and they must promise to uphold the law that Americans rely on 
every day for their continued safety and prosperity.
  Mr. President, I see the distinguished Senator from Rhode Island, Mr. 
Reed, on the Senate floor, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. REED. Mr. President, we are debating the President's nomination 
to succeed Justice John Paul Stevens, who has served this country 
admirably and with great distinction. I rise in wholehearted support of 
Solicitor General Elena Kagan's nomination to be our next Supreme Court 
Justice. She has had an illustrious legal career that includes clerking 
for Judge Abner Mikva on the U.S. Court of Appeals for the D.C. Circuit 
and Justice Thurgood Marshall on the U.S. Supreme Court; obtaining 
tenure at two of the top law schools in the country, the University of 
Chicago and Harvard; serving as an associate counsel in the Clinton 
administration; becoming Dean of Harvard Law School; and now serving as 
Solicitor General of the United States. Casting a vote on a nominee to 
the Supreme Court is one of the most consequential votes we face as 
Senators because no court can review the decisions of the Supreme 
Court. They are the ultimate arbiters of the law and the Constitution 
in this country.
  The Constitution includes the Senate as an active partner, along with 
the President, in this process of confirming Justices to the Supreme 
Court. As stated in article II, section 2, clause 2 of the 
Constitution, nominees to the Supreme Court shall only be confirmed 
``by and with the Advice and Consent

[[Page 15122]]

of the Senate.'' This confirmation process and the Senate's role in it 
serves as a vital democratic check on America's judiciary, particularly 
in a case where a Supreme Court Justice will serve for a life term.
  Indeed, one of the Senate's greatest opportunities and 
responsibilities to support and defend the Constitution of the United 
States is achieved through upholding our duty as Senators to give 
advice and consent on the nominations of the President to the Federal 
bench.
  As I have stated before, my test for a nominee is simple and is drawn 
from the text, the history, and the principles of the Constitution. A 
nominee's intellectual gifts, experience, judgment, maturity, and 
temperament are all important, but these alone are not enough. I need 
to be convinced that a nominee to the U.S. Supreme Court will live up 
to both the letter and the spirit of the Constitution. The nominee 
needs to be committed not only to enforcing laws, but also to doing 
justice. The nominee needs to be able to make the principles of the 
Constitution come alive--equality before the law, due process, full and 
equal participation in the civic and social life of America for all 
Americans; freedom of conscience, individual responsibility, and the 
expansion of opportunity. The nominee also needs to see the unique role 
the Court plays in helping balance the often conflicting forces in a 
democracy between individual autonomy and the obligations of community, 
between the will of the majority and the rights of the minority. A 
nominee for the Supreme Court needs to be able to look forward to the 
future not just backwards. The nominee needs to make the Constitution 
resonate in a world that is changing with great rapidity.
  Elena Kagan passes this test. She is extraordinarily qualified on the 
basis of her intellectual gifts. But what is most striking about 
Solicitor General Kagan, in both her academic work and her life work, 
is her commitment to the Constitution.
  In a speech she gave in October 2007 at my alma mater, West Point, 
well before she was considered for Solicitor General or for the Supreme 
Court, she stated that our Nation is most extraordinary because we, in 
her words, ``live in a government of laws, not of men or women.'' She 
used as a touchstone for her speech a place on the West Point campus 
called Constitution Corner, which was a gift from the West Point class 
of 1943, who not only served our Nation but defended the Constitution 
through the rigors of World War II and beyond.
  There are five plaques at this sight. One of the plaques is titled 
``Loyalty to the Constitution,'' one of the principal tenets by which 
every professional soldier must abide. It basically states what those 
who serve in the military are keenly aware of and points to the fact 
that the United States broke with an ancient tradition when it was 
created. Instead of swearing loyalty to a military leader, the American 
military swears loyalty to the Constitution. Interestingly enough, 
although Elena Kagan never wore the uniform of the United States, she 
has demonstrated this same loyalty to the Constitution throughout her 
life.
  I am confident she will continue to uphold and defend our 
Constitution as she assumes her next role as a Justice of the Supreme 
Court. During her confirmation hearings, on the role of a judge, she 
said:

       As a judge, you are on nobody's team. As a judge, you are 
     an independent actor, and your job is simply to evaluate the 
     law and evaluate the facts and apply one to the other as 
     best, as prudently and wisely as you can. You know, the 
     greatness of our judicial system lies in its independence, 
     and that means when you are on the bench, when you put on the 
     robe, your only master is the rule of law.

  Supreme Court Justices matter, and their impact on the lives of 
Americans from all walks of life can be profound. We only need to look 
at a couple of the recent Supreme Court decisions to understand how 
profound that impact can be.
  More than four decades ago, Congress passed laws to protect women and 
others against workplace discrimination. However, five Justices in the 
case of Ledbetter v. Goodyear Tire gave immunity to employers who 
secretly discriminate against their workers. Thankfully, we passed the 
Lilly Ledbetter Fair Pay Act of 2009, which I cosponsored and President 
Obama signed into law, to ensure equal pay for equal work and to 
effectively and properly overturn this immunity granted by these five 
Justices.
  This year, five Justices in Citizens United v. Federal Election 
Commission favored big corporations by ignoring precedent to bestow 
upon corporations the same power as any individual citizen to influence 
elections--in fact, some might argue much greater power through much 
greater spending. In his dissent, Justice Stevens, who is retiring and 
who will, I hope, be replaced by Solicitor General Elena Kagan, warned 
that the ``Court's ruling threatens to undermine the integrity of 
elected institutions across the Nation. The path it has taken to reach 
its outcome will, I fear, do damage to this institution.''
  On this point, the words of Lilly Ledbetter are particularly 
relevant. The plaintiff in the famous case said:

       We need Justices who understand that law must serve regular 
     people who are just trying to work hard, do right, and make a 
     good life for their families . . . This isn't a game. Real 
     people's lives are at stake. We need Supreme Court Justices 
     who understand that.

  Elena Kagan understands this point, and she will bring this 
understanding to the U.S. Supreme Court.
  In addition, I am confident that Solicitor General Kagan's tenure as 
Dean of Harvard Law School will serve her well as she works with her 
colleagues on the Court. As Dean, she drew acclaim as a pragmatic 
problem solver who could bridge ideological divides among the faculty. 
Indeed, her success in leading and bringing together one of the most 
contentious legal faculties in the Nation is a testament to her 
interpersonal, oratory, and analytical skills--all of her skills. As 
someone who had the privilege of graduating from Harvard Law School, I 
can indeed confirm that it is one of the most intellectually 
contentious places in the country, as it should be, because it is there 
where the ideas of law, of Constitution, and of our relationships with 
one another in this democracy, are vigorously debated.
  The fact that she has garnered wide bipartisan support is further 
evidence of her great standing. She has received the endorsement of 
eight former Solicitors General from both parties, including Ken Starr 
and Ted Olson; 54 former Deputy and Assistant Solicitors General of 
both parties; 69 law school deans; and more than 850 law school 
professors from across the country and across the political spectrum.
  Just to give an example of how well regarded she is, here is what 
Professor Jack Goldsmith, former Assistant Attorney General during the 
George W. Bush administration, had to say:

       [Elena] Kagan possesses an extraordinary knowledge of the 
     legal issues before the Supreme Court. Whatever else may be 
     said about being a law professor, it is the profession that 
     requires one to know legal subjects comprehensively enough to 
     teach them . . . What I do know is that Kagan will be open-
     minded and tough minded; that she will treat all advocates 
     fairly and will press them all about the weak points in their 
     arguments; that she will be independent and highly 
     analytical; and that she will seek to render decisions that 
     reflect fidelity to the Constitution and the laws.

  Clearly, she is not only well qualified, but she also has wide 
bipartisan support.
  Before I conclude, I wish to make one final point regarding Elena 
Kagan's respect and admiration for the military. She has won praise 
from students who have served our country in uniform for creating a 
highly supportive environment for students who served in the Armed 
Forces of the United States and who were attending Harvard Law School. 
In my view, her respect and admiration for the military is sincere and 
proven.
  America's courtrooms are staffed with judges not machines because 
justice requires human judgments. This is particularly so on the 
Supreme Court. Of all the hundreds of thousands of cases filed in 
American Federal courts each year, only a small percentage reach the 
Supreme Court. These are the hardest of cases--cases that have divided 
the country's lower courts. These are cases where one constitutional 
clause may be in conflict with

[[Page 15123]]

another, where one statute may influence the interpretation of another, 
and where one core national value may interfere with another. These 
cases often divide the Justices of the Court by close margins.
  Surely, the Justices on both sides of a 5-to-4 case can claim to be 
following the judicial process and respecting the precedents of the 
Court. What divides their opinions is the set of constitutional values 
they bring to the case. Elena Kagan, in my view, brings the set of 
constitutional values that, to quote the words of Lilly Ledbetter 
again, will make her a Supreme Court Justice ``who understand[s] that 
law must serve regular people who are just trying to work hard, do 
right, and make a good life for their families.'' As Elena Kagan 
herself put it, she will do her ``best to consider every case 
impartially, modestly, with commitment to principle and in accordance 
with the law.''
  It is with great pleasure that I support the nomination of Elena 
Kagan to the highest Court in the land, and I urge my colleagues to do 
the same.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Hawaii is recognized.
  Mr. AKAKA. Mr. President, I rise to speak in support of Solicitor 
General Elena Kagan to be an Associate Justice on the U.S. Supreme 
Court.
  I am confident that Solicitor General Kagan is highly qualified for 
this prestigious position. She has worked hard and earned a place at 
the top of the legal profession.
  During her career, she has held various positions across the Federal 
Government that have prepared her well for this new position.
  As Solicitor General since 2009, she worked on many issues currently 
before the Court.
  She has argued a broad range of issues--from defending Congress's 
ability to protect kids from child predators--to the United States' 
ability to go after those supporting terrorist organizations.
  Through several different assignments in the Clinton White House, 
Elena Kagan worked for the President on the challenges facing our 
Nation.
  She also has experience in the judicial branch, including clerkships 
in the U.S. Supreme Court as well as the U.S. Court of Appeals for the 
DC Circuit.
  Solicitor General Kagan also spent many years as a professor of law 
at the University of Chicago Law School and Harvard Law School.
  As dean of Harvard Law School, she worked with the student body to 
improve the quality of student life and encourage a spirit of public 
service.
  She also worked as a lawyer in private practice. In all, she has 
spent years studying complex legal theories and debating issues.
  Some of the most difficult issues end up at the Supreme Court and 
each Justice needs a thorough understanding of the law.
  Elena Kagan has demonstrated her knowledge of the law and I believe 
she will be a successful jurist.
  Her nomination to our Nation's Highest Court is something our entire 
country can be proud of.
  In recent years, we have taken many positive steps to make our 
government a better reflection of the American people.
  Solicitor General Kagan's confirmation as associate justice will 
continue that progress and mark the first time the U.S. will have three 
women on the Supreme Court at the same time. This is a wonderful 
milestone for our country.
  I was very impressed with Elena Kagan when we met earlier this year.
  We talked about Hawaii and the importance of reconciliation with 
Native Hawaiians.
  I was impressed with her history of building consensus and bringing 
people together--as well as her knowledge of the law. I know that she 
will do a tremendous job upholding our Constitution as an Associate 
Justice on the U.S. Supreme Court.
  After receiving many letters of support for Solicitor General Kagan's 
nomination--and seeing for myself her character, her intelligence, and 
her legal expertise--I am pleased to support her nomination--and urge 
my colleagues to do the same.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant editor of the Daily Digest called the roll.
  Mr. WARNER. 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. WARNER. Mr. President, I ask unanimous consent to speak as in 
morning business for up to 8 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                     Authorizing Settlement Funding

  Mr. WARNER. Mr. President, I rise today, as this Chamber debates the 
nomination of Elena Kagan--someone I am looking forward to supporting 
when we vote--to raise another issue of ensuring justice in our 
country, an issue the Presiding Officer, I know, has been concerned 
about as well, and that is urging this Chamber to take action and 
approve funding for the settlement of racial discrimination claims made 
by thousands of African-American farmers.
  This is an issue with which I have dealt for years, first as Governor 
of Virginia, now as a Senator. This issue was first brought to my 
attention by John Boyd, who is a fourth generation African-American 
farmer from Southside, VA. He founded the National Black Farmers 
Association in 1995.
  He and a group of other African-American farmers brought forward a 
series of claims that were finally addressed in a lawsuit named Pigford 
v. Glickman. That lawsuit concerned allegations that the U.S. 
Department of Agriculture had denied farm loans and other services to 
African-American farmers between 1983 and 1997, although I think 
history will show those acts of discrimination long preceded 1983.
  That case was settled in 1999. But due to very tight deadlines, 
thousands of farmers missed the deadline to file their complaints.
  An estimated 74,000 Black farmers now await approval of funding by 
this body, following the announcement of a settlement of these 
additional claims by the USDA in February of this year. The USDA has 
acknowledged these claims. They have agreed to a settlement. These 
funds have been appropriated. This funding has been paid for.
  According to Mr. Boyd, this effort, if we can get this funding 
approved, will mark the seventh time the Senate has tried to act on 
providing the Black farmers settlement money.
  I have to say that as we debate the nomination of a very talented 
individual to serve on the Supreme Court and we hear folks on both 
sides of the aisle talk about American justice and American 
jurisprudence, it is a varnish on that record and, to a certain degree, 
on this body that we in the Senate have not acted to make sure that 
close to $1 billion in these settlement claims--again, that have been 
authorized by USDA--that those funds are not fully appropriated and 
approved by this Senate body for these farmers, many of whom have been 
struggling for decades, some who struggle due to the discrimination 
that has been acknowledged by our own Department of Agriculture. We 
have not acted. Senate procedure has gotten in the way of authorizing 
payment of these funds.
  Now it is the time to act. This week the Senate has the opportunity 
to finally authorize funding of the settlement costs and turn the page 
on past discriminatory practices.
  As I stated earlier, this legislation is fully paid for and there 
does not appear to be any substantive opposition to honoring the terms 
of this settlement.
  I know we are all anxious to vote on Elena Kagan. I know many of us 
are anxious to vote on the small business legislation. I know we are 
all anxious, as well, for the August recess to start. As we go through 
this process on a matter that reflects on the integrity of this body, 
reflects on the value of our jurisprudence system, as we think through 
trying to get out of town and getting home, I hope our leaders can come 
together and act to make sure that these Black farmers, many times 
waiting literally for decades for the appropriate compensation that 
everyone

[[Page 15124]]

throughout the judicial system has said is owed to them, that in this 
rush to get out and get back home, the Senate can finally take action 
in the Pigford case and these farmers can receive their appropriate 
compensation.
  I again thank those involved in this action. I particularly thank Mr. 
John Boyd, as I mentioned, from Southside, VA, who has been a 
passionate and tireless leader on this issue for more than two decades.
  I see my good friend, the Senator from Delaware, is here to speak on 
behalf of Elena Kagan. I know he and the Presiding Officer have also 
raised this issue making sure these Black farmers get--not their day in 
court; they have had their day in court, but they are waiting for the 
Senate to act on a noncontroversial issue so they can receive the 
funding that is long overdue.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. KAUFMAN. Mr. President, I associate myself with the remarks of 
the Senator from Virginia. He is right on point. This is not about a 
trial. This is about people getting what they justly deserve. It is 
time we do it. I thank him for coming to the floor and making that 
argument.
  I wish to speak tonight in support of the nomination of Solicitor 
General Elena Kagan to be an Associate Justice on the Supreme Court.
  On July 13, I first came to the floor and gave my reasons for 
supporting this outstanding nominee. She has a superior intellect, 
broad experience, superb judgment, and unquestioned integrity. 
Throughout her career, she has consistently demonstrated a first-rate 
intellect and an intensely pragmatic approach to identifying and 
solving problems--two traits that are indispensable in any great judge, 
and she will be a great judge. I support her nomination with enthusiasm 
and without reservation.
  I am here today not to repeat the basis for my support but to note 
briefly two aspects of this debate that I find particularly troubling.
  First, I have heard some of my colleagues attack this nominee based 
on arguments she made and positions she took in her role as Solicitor 
General in a particular case when she made this argument on behalf of 
her client, the United States of America. That causes me great concern 
because I think these kinds of attacks--think about it for a minute 
now. She is not in a public forum. She is not giving a speech. She is 
not writing an article. What she is basically doing in court is 
representing the United States of America, making the argument that she 
thinks is the best argument to carry for the United States of America. 
And people pull that out on the Senate floor and read it and are 
critical of it.
  I can understand why one disagrees with the Solicitor General on an 
argument they make. I can understand why one disagrees with the Supreme 
Court. But to pull that out and use that against a nominee is very 
troubling because it gets to the basic question of what is the job of a 
litigator, of a lawyer, of a solicitor in making the argument for their 
client.
  Solicitors General are responsible for representing the United States 
before the Supreme Court. They should be free to make all appropriate 
arguments on their client's behalf without fear that those arguments 
might someday be held against them if they happen to be considered for 
another office.
  The Solicitor General's role in selecting cases in which she must 
represent the government is very limited, particularly in the many 
cases in which the government is the respondent. We want lawyers 
representing the United States in any court to do so zealously, well 
within the bounds of the law. We should not give them reason to 
hesitate about doing so by later treating those arguments as reflecting 
their own personal, private beliefs, which they do not do.
  I am reminded of the attacks we too often see on lawyers who 
represent unpopular clients, with the suggestion being that the 
lawyer's legal arguments must also reflect that lawyer's personal 
views. Think about that. A lawyer gets on a case, a lawyer is doing pro 
bono work, a lawyer has been assigned by a judge and makes an argument 
in court for their client, trying to get their client cleared, and we 
bring it back as if the lawyer is making that argument about 
themselves. I have heard it too often on this floor and in committee.
  Let's not forget that the American tradition of representing 
unpopular clients is older than our Nation, dating at least as far back 
as John Adams' representation of British soldiers charged in the Boston 
Massacre. John Adams defended the British soldiers involved in the 
Boston Massacre. Would it be fair to bring that up on the floor of this 
body to say that he was in favor of the British soldiers and use that 
against him if, in fact, he had been nominated to a position?
  The vigorous defense of the United States requires that we not limit 
its advocates to making only those legal arguments with which they 
personally agree. I am surprised I even have to make that statement on 
the floor.
  More broadly, our adversarial system depends on advocates making all 
proper arguments that are in the interest of their clients. I feel as 
though I am in a lawyer 101 class. Why do I have to be saying this? It 
is simply wrong to assume a lawyer's arguments reflect his or her 
personal convictions. Again, lawyer 101. It is, therefore, also wrong 
to oppose a nominee based upon proper arguments that a nominee has made 
as a lawyer, regardless of whether an individual Senator regards those 
arguments to be legally correct.
  My second concern relates to the repeated and unjustified comments by 
many of my colleagues regarding the word ``empathy,'' which they seem 
to regard as a trait deserving of recrimination. Empathy, empathy, 
empathy.
  I commend to my colleagues a superb commentary on this point by Joel 
Goldstein, distributed by the History News Service. I ask unanimous 
consent to have this commentary printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                      [From History News Service]

             How Empathy Makes Superior Judges--and Justice

       Critics ridiculed President Obama's statement that judges 
     should be empathetic. But as the Senate prepares to vote on 
     the Supreme Court nomination of Elena Kagan, legal historian 
     Joel Goldstein argues that senators should be looking for 
     that very quality.
       In voting on President Obama's nomination of Elena Kagan 
     for the Supreme Court this week, senators should consider her 
     legal ability and constitutional vision, but also her 
     capacity to be an empathetic justice.
       Republicans mocked President Obama when he suggested that 
     empathy was an important ingredient in a justice. In fact, 
     the president was simply repeating the insight Theodore 
     Roosevelt uttered more than a century ago when he explained 
     to his close friend, Sen. Henry Cabot Lodge, why he was 
     inclined to nominate Judge Oliver Wendell Holmes Jr. to the 
     Supreme Court.
       T.R. recognized that those who become judges invariably 
     have had close association with wealthy and powerful people. 
     Those relationships dispose them to understand perspectives 
     of the successful classes. But would they give a fair shake 
     to the less fortunate who were outside the professional or 
     social circles that shaped and reflected their attitudes?
       Roosevelt thought it ``eminently desirable'' that the 
     Supreme Court show its ``entire sympathy with all proper 
     effort to secure the most favorable personal consideration 
     for the men who most need that consideration.'' He 
     appreciated Holmes, who could ``preserve his aloofness of 
     mind so as to keep his broad humanity of feeling and his 
     sympathy for the class from which he has not drawn his 
     clients.''
       If anything, Obama's comment was more neutral than 
     Roosevelt's. Roosevelt twice used ``sympathy'' which connotes 
     identification with, or bias toward, another. ``Empathy,'' 
     Obama's misconstrued word, simply implies an understanding 
     of, and sensitivity to, the feelings or experiences of 
     another, not any predisposition in favor.
       In context Roosevelt and Obama were making the same point, 
     that effective judging requires sensitivity to a wide range 
     of experiences. It is relatively easy for judges, like other 
     human beings, to relate to experiences and perspectives they 
     have shared. What's difficult, for judges and for the rest of 
     us, is to comprehend those to which we have not been exposed.
       That reality sometimes inclines judges to favor those whose 
     positions and circumstances are familiar. The bias may be 
     unconscious but that does not make it any less real or 
     decisive or unfair.

[[Page 15125]]

       The Republican Roosevelt and the Democratic Obama 
     recognized that empathy was an important corrective to these 
     hidden preferences. Far from conferring favoritism or setting 
     law aside, as Obama's critics contend, T.R. and Obama 
     understood that empathy is often a prerequisite for 
     impartiality.
       Justice Holmes's great colleague, Justice Louis D. 
     Brandeis, captured the Roosevelt-Obama insight when he wrote 
     that ``knowledge is essential to understanding, and 
     understanding should precede judging.'' A judge cannot fairly 
     assess something he or she does not understand and they 
     cannot understand that which is unfamiliar if they do not 
     make a real effort to relate to it.
       Whether Kagan is empathetic may determine how she will act 
     when the court faces the watershed cases that often define 
     the jurisprudence of a generation.
       The quality of empathy, which Obama's critics ridicule, was 
     critical in decisions which all now celebrate. Brown v. Board 
     of Education declared racially segregated education a 
     violation of the Equal Protection Clause because it created 
     in African-American children a ``feeling of inferiority as to 
     their status in the community that may affect their hearts 
     and minds in a way unlikely ever to be undone.'' By viewing 
     the world from the perspective of black children, the court 
     identified the moral wrong in segregation even while some 
     strict constructionists saw the decision as lawless.
       And imagine the national embarrassment America would have 
     been spared in Korematsu v. United States, the case that 
     sanctioned internment of loyal American citizens of Japanese 
     descent during World War II, had the court followed Justice 
     Robert Jackson's empathetic dissent, which, unlike the 
     majority opinion, tried to understand the impact of imposing 
     a racially motivated penalty on innocent Americans.
       Although Roosevelt was a great Republican president of the 
     20th century and a hero to modern Republican luminaries such 
     as George W. Bush, John McCain, Karl Rove and others, the 
     idea's pedigree has not protected Obama from partisan 
     caricature of his commonsense observation.
       That's too bad. It has led some to distort as inconsistent 
     with impartiality a quality that is really designed to help 
     achieve it.
       To their credit, Theodore Roosevelt and Obama recognized 
     that a judge must make special efforts to understand the 
     thoughts and perspectives of those whose experiences she has 
     not shared. It's time for Obama's critics to stop distorting 
     his statement and pretending that this sensible insight is 
     subversive to the law or judging.
       Let's hope that senators of both parties include this 
     bipartisan criterion as a desirable trait in a justice when 
     they debate and vote on the Kagan nomination this week.

  Mr. KAUFMAN. Mr. President, as Professor Goldstein points out, 
President Obama's interest in empathy in Supreme Court nominees follows 
in the path of President Theodore Roosevelt who chose to nominate 
Oliver Wendell Holmes in 1902 based in part on Holmes' capacity for 
empathy.
  Roosevelt said it was ``eminently desirable'' that the Supreme Court 
make ``all proper effort to secure the most favorable personal 
consideration for the man who most needs that consideration.''
  I can understand concern about sympathy. I do not have it, but I 
understand sympathy. But empathy? President Theodore Roosevelt was not 
suggesting that Justices should somehow favor or advantage the 
downtrodden; that is not what he was saying and that is not what 
President Obama was saying when he was a Senator, only that they make 
every effort to understand the position of the litigants from walks of 
life different from their own.
  Likewise, President Obama's promotion of empathy is not, as his 
critics suggest, the advocacy of bias. ``Empathy,'' as a quick look at 
the dictionary will confirm, is not the same as ``sympathy.'' 
``Empathy'' means understanding the experiences of another, not 
identification with or bias toward another. Let me repeat that. 
``Empathy'' means understanding the experiences of another, not 
identification with or bias toward another. Words have meanings, and we 
should not make arguments that depend on misconstruing those meanings.
  Let me quote several insightful paragraphs from Professor Goldstein's 
article about why empathy is important in judging. I quote Professor 
Goldstein:

       In context, Roosevelt and Obama were making the same point, 
     that effective judging requires sensitivity to a wide range 
     of experiences. It is relatively easy for judges, like other 
     human beings, to relate to the experiences and perspectives 
     they have shared.

  All of us can do that. We can relate to the people we know around us. 
We can relate to our experience. We can relate to people with whom we 
went to school. We can relate to all those things.

       What's difficult, for judges and the rest of us, is to 
     comprehend those to which we have not been exposed.
       That reality sometimes inclines judges to favor those whose 
     positions and circumstances are familiar.

  We all know that. There but for the grace of God go I, reasons why 
juries will let someone go free.

       The bias may be unconscious but that does not make it any 
     less real or decisive or unfair.

  To continue the quote:

       The Republican Roosevelt and the Democratic Obama 
     recognized that empathy was an important corrective to these 
     hidden preferences. Far from conferring favoritism or setting 
     law aside, as Obama's critics contend, T.R. and Obama 
     understood that empathy is often a prerequisite for 
     impartiality.
       The quality of empathy, which Obama's critics parody, was 
     critical in decisions which all now celebrate. Brown v. Board 
     of Education declared racially segregated education a 
     violation of the equal protection clause because it created 
     in African-American children a ``feeling of inferiority as to 
     their status in the community that may affect their hearts 
     and minds in a way unlikely to ever be undone.''

  The PRESIDING OFFICER. The hour controlled by the majority has 
expired.
  Mr. KAUFMAN. Mr. President, I ask unanimous consent for 1 more 
minute.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KAUFMAN. I thank the Chair.

       By viewing the world from the perspective of black 
     children, the Court identified the wrong in segregation even 
     while some strict constructionists saw the decision as 
     lawless.

  I happen to think Elena Kagan is an outstanding nominee. I respect 
the fact that others disagree. I truly do. I hope that as this debate 
continues, we take care to make arguments that are fair expressions of 
our very real disagreements and avoid arguments that chill legitimate 
advocacy or deliberately misconstrue the words of others.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. COBURN. Mr. President, I am here to talk about the nominee, Ms. 
Kagan, for the Supreme Court, but I thought I would put it in the 
context of how I view what we are doing.
  As a physician, a father, and a grandfather taking a look at where we 
are as a nation, it is very worrisome to me. The 62 years I have lived 
have been fraught with great opportunity, great challenges, but never 
with a fear that what we have in this country may not last. I have to 
admit to my colleagues that I have that fear now. And it is not an 
unfounded fear. You see, this year we will borrow almost $1.6 trillion 
from our grandchildren. We will borrow in excess of $4 billion a day--
money we don't have. At this moment, we owe $13.35 trillion. No 
question, we are the biggest economy in the world, being fast caught by 
other large economies.
  The uniqueness of the American experiment could have been predicted 
by those who studied republics because freedom and liberty were the 
basis for such an explosion in growth and wealth and freedom and 
standard of living. The poor in our country live far in excess of half 
of the world's populations because of the great republic we are.
  I believe we have a short period of time to right the ship for our 
country. We have large disagreements in this body on how we do that, 
and others' ideas have as much value as mine. But it is not debatable 
the kind of trouble we are in as a nation. It is indisputable. We have 
a mountain of debt, and we are going to have interest costs that are 
going to chew up our freedom and chew up our children's prosperity and 
opportunity over the years that lie ahead of us.
  So we have great responsibility as we place somebody on the Supreme 
Court. Our constitutional responsibility is to advise and either give 
consent or not give consent. I have no doubts that my speech on the 
floor this afternoon will change any Senator's mind. It won't. But what 
I hope to do is to lay out the questions, as we put Ms. Kagan on the 
Court, of where we will be with the basis of her philosophy. I have 
served on the Judiciary Committee for almost 6 years. I have been 
through four Supreme Court Justice hearings. I have

[[Page 15126]]

met with four--actually, more than four--prospective nominees to the 
Supreme Court, and the responsibility is heavy.
  Elections do have consequences. They give the President of the United 
States the right to appoint, with advice and consent, all the judges in 
this country, as well as numerous other officials. But none is greater 
and none is more important than a Supreme Court Justice.
  My concern with Ms. Kagan is whether she really believes in what our 
Constitution says, and by her own words she fails to meet that test. So 
I think it is time for an extra parameter to be considered in light of 
the difficulties we face when we give consent for somebody who is going 
to be in a lifetime position who will, I believe, have negative 
consequences for our future. And I am going to spell out why I believe 
that.
  Ms. Kagan is a highly qualified woman who has attained much in her 
young life. She is highly intelligent, highly articulate, and quite 
pleasant. I believe she did the best job of at least letting us get to 
see some of what she thinks of any of the Supreme Court nominees we 
have heard, and I give her credit for that. But what I saw causes me to 
shake in my boots, and let me tell you why.
  Ms. Kagan made two critical statements. She believes Supreme Court 
precedent trumps the original intent of our Founders. Think about that 
for a minute. We just heard the Senator from Delaware mention Brown v. 
Board of Education. Under that philosophy, reaching back to our 
Declaration of Independence and our Constitution, Brown v. Board of 
Education would never have happened. We would have had ``separate but 
equal'' had we relied on Supreme Court precedent and not the underlying 
body of our Constitution.
  As I was reading recently, I came across something written by Calvin 
Coolidge. He is not very often quoted in this body, and for some of 
that I understand why.
  But one of the other things Nominee Kagan did was she refused to 
embrace natural rights in her testimony before the committee. You see, 
the whole foundation for our country is based on the fact that the 
rights we have are not given to us by the Congress of the United States 
or the Government of the United States or the Constitution of the 
United States; they are inherently ours. They are inalienable rights--
the right of life, the right of liberty, the right to pursue happiness. 
We have a government to be a caretaker, to ensure our rights are not 
infringed upon. So lacking that understanding--and it wasn't just once 
that she was asked that; she was asked that in terms of Blackstone's 
principles on the right of an individual to defend their life. She does 
not embrace that concept. It was not only evident in her plain words 
that she spoke but in her answers indirectly to other questions.
  So we have a Supreme Court nominee who believes that the wisdom of 
men today, outside of the Constitution, based on precedent, trumps the 
wisdom that was brought forth by our forefathers in both the 
Declaration of Independence and the Constitution of the United States. 
And there are other proofs for this that I will go through during my 
speech to explain.
  Listen to what Calvin Coolidge had to say:

       About the Declaration there is a finality that is 
     exceedingly restful. It is often asserted that the world has 
     made a great deal of progress since 1776; that we have had 
     new thoughts and new experiences which have given us a great 
     advance over the people of that day, and that we may 
     therefore very well discard their conclusions for something 
     more modern. But that reasoning cannot be applied to this 
     great charter.

  Or the Constitution that followed it.

       If all men are created equal, that is final.

  It can't be improved upon. It can only be lessened.

       If all men are endowed with inalienable rights, that is 
     final.

  It cannot be improved upon. It can only be lessened.

       If governments derive their just powers from the consent of 
     the governed, that is final.

  The power of the U.S. Government comes from the power we loan to the 
government as people and citizens of the United States.

       No advance, no progress can be made beyond these 
     propositions. If anyone wishes to deny their truth or their 
     soundness, the only direction in which he can proceed 
     historically is not forward, but backward toward the time 
     when there was no equality, no rights of the individual, no 
     rule of the people. Those who wish to proceed in that 
     direction cannot lay claim to progress. They are reactionary. 
     Their ideas are not more modern, but more ancient, than those 
     of the Revolutionary fathers.

  Well said, Calvin Coolidge. Well said.
  So we have before us a judge who said the following to me during our 
hearing:

       To be honest with you, I don't have a view of what are 
     natural rights, independent of the Constitution.

  Oh, really? So we are going to have a Supreme Court Justice who has 
no view of what our inalienable rights are other than what the 
Constitution says? Where can that take us? It can take us anywhere she 
wants to go, outside the bounds of the very liberties we loan to the 
government to have a civil society.
  If you look at the Declaration of Independence, it says:

       We hold these truths to be self-evident--

  Why aren't they self-evident to her? Why doesn't she hold an opinion 
on them--

     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 . 
     . .

  We have inalienable rights. We have natural rights. Yet we are about 
to put a Justice on the Supreme Court for life who, by her own words, 
does not have a view of what are natural rights. I don't know anybody 
who is an adult in this country who doesn't have a view of what they 
think are their natural rights.
  This is a quote from Elena Kagan:

       In some cases original intent is unlikely to solve the 
     question, and that might be because the original intent is 
     unknowable or might be because we live in a world that's very 
     different from the world in which the framers lived. In many 
     circumstances, precedent is the most important thing.

  No, that is just the opposite of what Coolidge had to say about the 
Declaration of Independence, just exactly the opposite. More modern, we 
got it right. Natural rights do not matter. Our wisdom, our intellect, 
our arrogance--of a government and the governing body--has more import, 
has more value, has more to do with what we do today than the wisdom of 
those inalienable rights and the Constitution that came out of it.
  Do you realize that in the Constitution, for every time it gives us a 
responsibility, it says four or five times what we can't do? Because 
the Framers were interested, and knowing the condition of men, that we 
would abandon--our tendency would be to allow the concentration of 
power to abandon those very principles they put into the Constitution.
  What did Madison have to say, just on the general welfare clause of 
the Constitution? He anticipated the Elena Kagans of this world. He 
said:

       With respect to the words general welfare, I have always 
     regarded them as qualified by the detail of powers connected 
     with them. To take them in a literal and unlimited sense 
     would be a metamorphosis of the Constitution into a character 
     which there is a host of proofs was not contemplated by its 
     creators.

  You see, that is how we have gotten into trouble as a country. That 
is why our economic future is not secure--because the Congress has 
exceeded its authority under a limited Constitution and the courts have 
failed to rein us in. They have failed to recognize their obligation.
  So we are going to have someone who believes that the precedent and 
wisdom of modern men is much more important than the original intent of 
our Founders to keep us free, to secure our liberty, to provide our 
inalienable rights to the pursuit of life, liberty, and the pursuit of 
happiness.
  Here is another area. If we read the Constitution and we read where 
they have set up our judicial system, what they reference, they say:

       The judicial power shall extend to all cases, in law and 
     equity, arising under this

[[Page 15127]]

     Constitution, the laws of the United States, and treaties 
     made, or which shall be made, under their authority. . . .

  They gave no wiggle room for the utilization of foreign law in 
interpreting the U.S. Constitution--none. Here is Elena Kagan:

       It may be proper for judges to consider foreign law sources 
     in ruling on constitutional questions.

  Here is what the Constitution says. Here is what the nominee to the 
Supreme Court says--exactly opposite of what the Constitution says. In 
other words, it is OK to use any source of law you want, not the source 
that the Constitution says you will be bound by in your oath.
  Let's take it a step further, same quote: ``Judges can get'' good 
ideas ``on how to approach legal issues from a decision of a foreign 
court. It may be proper for judges to consider foreign law sources in 
ruling on Constitutional questions.''
  Here is their oath:
  I do solemnly swear that I will faithfully and impartially discharge 
and perform all the duties incumbent upon me as a justice under the 
Constitution and laws of the United States. So help me God.
  ``Under the laws and the Constitution of the United States'' is not 
foreign law. That is the U.S. Constitution and our statutes. So as soon 
as she takes the oath, her very philosophy violates it because she 
honestly testified that it is fine to use foreign law to interpret our 
laws and our Constitution.
  Again, how did we get in the trouble that we are in today? How did we 
get that 20 years from now every man, woman, and child in this country 
is going to be responsible for over $1 million worth of debt? How did 
we get to the point where $350 billion of waste, fraud, and duplication 
occurs every year in the Federal Government? How did we get to the 
point that we can take people's rights away because we deem so in the 
Congress, in our smart, modern wisdom that lessens liberty and freedom 
throughout this land?
  We do it because we do not use the book, and we don't follow the oath 
that we are sworn to uphold; that is, the U.S. Constitution and the 
laws of this land.
  Then it comes to the commerce clause. Elena Kagan:

       The commerce clause has been interpreted broadly. It's been 
     interpreted to apply to . . . anything that would 
     substantially affect interstate commerce.

  When asked if a Federal law requiring Americans to eat three fruits 
and three vegetables every day would be unconstitutional, Ms. Kagan 
avoided the question by simply saying, ``That would be a dumb law.''
  Madison had something different to say:

       Ambition must be made to counteract ambition.

  He is talking about us.

       If men were angels, no government would be necessary. If 
     angels were to govern men, neither external nor internal 
     controls on government would be necessary. In framing a 
     government which is to be administered by men over men, the 
     great difficulty lies in this: You must first enable the 
     government to control the governed; and in the next place 
     oblige it to control itself.

  We have had this vast expansion since the late 1940s in this country 
in the commerce clause. It started with Wickard v. Filburn. A farmer 
raising chickens was raising his own wheat. But the Government didn't 
want him raising his own wheat because they had allotted limits during 
the 1930s, the Great Depression--limits to what you could grow. So he 
owns his own land, he has his own chickens, but the Supreme Court said: 
You can't raise your own feed. You have to buy it from somebody.
  So here we started with the Supreme Court ruling and moving in to 
take away the freedom of an individual farmer to raise his own feed for 
his own chickens for a greater good--supposedly to control the price 
and availability of wheat.
  What has happened to us since then? Look at the expansion of the 
commerce clause and how it is moving power away from those who are 
governed without their consent to a central government in Washington. 
What does Ms. Kagan complain about during the hearing? That she thinks 
the Supreme Court may be moving to reverse that--of which she adamantly 
disagrees. When asked about the Seminole case and the Lopez case, she 
worried that it moves us back to individual freedom and a more 
restrictive commerce clause, a commerce clause that says our rights are 
more important than those of the government.
  That goes back to the basis that she doesn't believe we have natural 
rights. The fundamental question of whether an individual, free in a 
country, can walk on to the Supreme Court and disavow inalienable 
rights and natural rights, that is a very dangerous concept because if 
you don't believe in natural rights, you don't worry about taking them 
from those who are governed. You don't worry about the Congress taking 
them from those of the governed.
  We are about to move to a point where we are going to put somebody in 
a lifetime position on the U.S. Supreme Court who believes in foreign 
law utilization to interpret the issues before it; who believes that 
precedent trumps original intent of the Founders--in other words, the 
arrogance is we are much smarter than they were, our wisdom is much 
better, we are more modern, therefore things have changed, therefore we 
have to ignore what they have said; that the commerce clause is 
boundless; even if Congress passes stupid laws, they have the right to 
do it and there is no obligation on the Court to look at the 
Constitution and the documents behind it and what our Founding Fathers 
had to say about the authority and what they intended and meant as they 
wrote that clause into the Constitution.
  Then, finally, one last point. She does not believe in the individual 
natural right that you have as a person to defend yourself. She 
wouldn't embrace that--which implies, very rightly so, that the second 
amendment, even though we now have precedent, is at risk under Elena 
Kagan as a Supreme Court Justice.
  So, summing up, we are going to put somebody on the Court that I see 
will further the problems we have versus starting to reembrace the 
principles that made this country great. Are we going to embrace what 
has gotten us into trouble? Are we going to embrace the $13.34 trillion 
worth of debt growing at $1.4 trillion to $1.6 trillion today, that is 
stealing the opportunity of the future? We are. We are going to put her 
on there, and her wisdom and her vision is very different from our 
Founders, our Constitution, and our natural rights.
  This will be a huge mistake for this country if we want to solve the 
problems in front of us. As I said, I don't expect anybody to change 
their vote on the basis of my viewpoint. I will congratulate her for 
being more honest and open on her testimony than others would because 
normally we would not find out these things about judges.
  With a worried heart, I yield the floor.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. ISAKSON. Mr. President, I am always reluctant to find out that I 
am following the Senator from Oklahoma on the floor of the Senate. He 
is always prepared and always eloquent. I commend the Senator on his 
speech.
  But I want to commend him on his questioning in the hearing because 
he allowed us to gain, and Ms. Kagan to express, important points, 
important opinions, important judgments, and important statements for 
everybody in this body to make up their minds. That is really what this 
Senate is all about, and it is Senators like the Senator from Oklahoma 
who help us all to do our job, and I commend him very much for his 
work.
  I also commend him for covering so many facts. My speech will be very 
brief. I announced about 4 weeks ago that I would not vote for the 
confirmation of Ms. Elena Kagan and expressed at that time the reasons. 
But I wanted to memorialize that on the Senate floor because it is a 
serious responsibility that we have to advise and consent on the 
nomination of the President of the United States.
  In response to that, the advice and consent should always be 
thoughtful

[[Page 15128]]

and should always be thorough, and mine is generally based entirely on 
the Constitution when it comes to the Supreme Court and the 
appointments the Presidents of the United States make because I am well 
aware my position, the President's position, and the position of all of 
us in this was a creation of those of our Founding Fathers who wrote 
the Constitution that created the government, that is the United States 
of America and the three branches of that government that will govern 
us as a nation: the executive, the legislative, and the judicial. 
Executive, as in the President; legislative, as in us; and the 
judicial, as the jury--the jury not of who is right and wrong but is 
the Constitution right, is the law right that we passed in relation to 
the Constitution that created us.
  Two things in Ms. Kagan's past concern me greatly in terms of the 
direction she would go as a Justice on the U.S. Supreme Court. One is 
the Solomon rule application when she was dean of the Harvard Law 
School.
  When I helped write, along with a lot of other Members in this body, 
No Child Left Behind, we made sure we covered this issue of military 
access on campuses of secondary schools and postsecondary schools.
  The Solomon Amendment is a simple amendment that says: If you accept 
Federal funds as a public institution or as a private institution, in 
terms of Harvard through research or funds such as that, that U.S. 
military representatives will have access to the campus.
  Ms. Kagan made the conscious decision as dean of the law school that 
that access would not be available at Harvard and, even after direction 
otherwise, continued in that position until she eventually withdrew. 
Well, if someone is going to the Supreme Court of the United States of 
America to be a judge of our Constitution and its application to our 
legislative and judicial branches, you must remember the first 
responsibility designated to this Congress and to this government is to 
protect and defend the domestic tranquility of the people of the United 
States of America and to constitute an army and a navy to do that.
  You cannot draw on that army and navy if you cannot draw on the 
people in your country. At a time today, a contemporary time such as 
2010, where everyone who serves--everyone, not a one is conscripted, 
every single one is a volunteer--the information about the 
opportunities, the availability and the promise of a career in the 
military or a period of service should not be denied anyone who goes to 
an institution that receives funds from the United States of America 
and from this Congress.
  Secondly, you know there has been a lot of talk about the Citizens 
United case, and there have been a lot of political arguments about the 
Citizens United case. But it is a first amendment case. I do not think 
anybody argues about that.
  In listening to the testimony in the Judiciary Committee and reading 
the record on the Citizens United case, it is obvious, in her 
expression and her arguments before the Supreme Court, Ms. Kagan felt 
that even though you had a first amendment, through either printing or 
writing or video or audio, the government could restrict political 
speech.
  Well, the first amendment is the guarantee of free speech. To argue a 
case that, notwithstanding the first amendment, political speech could 
be run by the government and judged by the government and its timing 
and its accessibility, to me, flies in the face of the very first 
amendment, of the first 10 amendments that finally allowed us to pass a 
Constitution and come together as a nation.
  So there are a lot of other issues. The Senators who preceded me have 
raised a lot of those issues. I commend Ms. Kagan, too, on her complete 
congeniality and her complete candor before the committee. But in terms 
of this Senator, in terms of my vote, in terms of my judgment, it is 
the case and the opinions on the first amendment in Citizens United, 
and the actions contrary to the Solomon Amendment, and military access 
that, to me, deliver a temperament that I do not think is appropriate 
of a Justice of the Supreme Court at this time.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. BENNETT. Mr. President, we are we here to discuss Solicitor 
General Elena Kagan's qualifications for the Supreme Court. We have 
heard a number of conversations from our colleagues who are themselves 
lawyers, who have sat in on the Judiciary Committee, and who have gone 
through the record with great detail.
  As I have said before, I am unburdened with a legal education. I have 
great respect for those who have been taught to think like that and 
talk like that and who go into that kind of detail. But I view this 
from a slightly different point of view, and I hope it is a commonsense 
point of view. I would like to share it with my colleagues this 
afternoon.
  I go back, not to start with Ms. Kagan but to start with an incident 
that occurred when we were discussing the possibility of John Roberts 
going to the Supreme Court as the Chief Justice. In that period of 
discussion, there was a particular case that was raised in the press 
where John Roberts had issued a ruling that, according to the 
newspapers and the reporters, was an egregious ruling.
  Here are the facts of the case: There was a young woman riding the 
Metro who ate a french fry, not a lot of french fries--just one french 
fry. She had the misfortune--she was 12 years old--she had the 
misfortune to do that in the presence of one of the security officers 
of the Metro who arrested her for violating the publicly advertized 
zero-tolerance, no-eating policy in a Washington Metro station.
  She was not just detained, she was arrested, searched, handcuffed, 
driven to police headquarters, booked, and fingerprinted. Three hours 
later, her mother showed up at the police station and she was released 
to her mother. The mother sued, alleging that her daughter was treated 
improperly, that an adult would have only received a citation, and that 
this was a terrible thing that had been done to her.
  The law says children who violate this policy have to be detained 
until their parents can arrive. Well Justice Roberts, the case finally 
came to him on the circuit court, ruled that the Metro police had acted 
properly. In an attempt to derail his confirmation to Chief Justice, 
there was a dust-up in the newspapers and the media: This is a man, we 
want to put him as Chief Justice of the United States, and he will 
tolerate this kind of treatment of a young woman who does nothing more 
than eat a single french fry in a Metro station? Is that the kind of 
man we want on the Court?
  I remember those kinds of editorials and denunciations that were made 
of Mr. Roberts. Then, the facts came out as they got into what 
happened. What I have said are, indeed, the facts. But this is what 
Justice Roberts said when he handed down his opinion. He said: No one 
is very happy about the events that led to this litigation. He said it 
was a stupid law. He did not say it in those kind of terms. He said it 
in appropriate legal terms. But basically the burden of what he said 
was it was a stupid law.
  But he said: The question before us is not whether these policies 
were a bad idea but whether they violated the fourth and fifth 
amendments of the Constitution. And, as Judge Roberts concluded, they 
did not.
  Interestingly, the city council, in response to this case, had 
changed the law. So he made it clear: I do not agree with this law. I 
think it is a bad law, but that is not my responsibility. My 
responsibility is to determine whether it violates the Constitution.
  This is reminiscent of Justice Potter Stewart's dissent in Griswold 
v. Connecticut. He said: We are not asked in this case to say whether 
we think this law is unwise or even asinine. We are asked to hold that 
it violates the U.S. Constitution, and that I cannot do.
  What does that have to do with Elena Kagan? She was faced with a 
similar situation. She was not a judge. But she was in a position of 
authority, and she was faced with a law that she decided was a bad law. 
This was the Solomon Amendment, having to do with the

[[Page 15129]]

question of military recruiters on college campuses. She was in a 
position as the dean of the law school at Harvard, to prevent military 
recruiters from coming on campus.
  The Solomon Amendment basically said: You cannot do that, Dean Kagan. 
You may disagree with the military's policy with respect to don't ask, 
don't tell, and you can do that. But you cannot accept federal funds 
and prevent military recruiters from coming on campus. You can even 
express your disagreement in a legal fashion, and she did. She openly 
opposed it. She joined other faculty to sign an amicus brief in support 
of a constitutional challenge of the Solomon Amendment.
  I do not object to that. She has every right, as an American citizen, 
to challenge something she thinks is inappropriate in the law. But she 
does not have the right to flout the law, and to say: No, we choose not 
do it. When she became the dean at Harvard, she did that.
  She refused to allow the recruiters to come on at the Harvard Law 
School. She says she did not. She says: The military had full access at 
all times. By the way, she was wrong on the law, as far as the Solomon 
Amendment is concerned, because the Supreme Court decided unanimously 
that the Solomon amendment was constitutional and that the military had 
the right to equal access to students at institutions receiving Federal 
funding.
  So she should have waited for the Supreme Court to rule, but she did 
not. She said: I will comply with the law. This is what the recruiters 
said. She says they had full access. All right. If they had full 
access, I would think they would confirm that they had full access. But 
this is what they had to say. The Army's report from Spring 2005 said: 
The Army was stonewalled at Harvard. Phone calls and e-mails went 
unanswered and the standard response was: We are waiting to hear from 
our higher authority.
  There is a Defense Department memo stating: Denying access to the 
Career Service Office is tantamount to chaining and locking the front 
door of the law school, as it has the same impact on our recruiting 
efforts.
  The chief of recruiting for the Air Force JAG Corps was repeatedly 
blocked from participating in Harvard's 2005 recruiting session. He 
reported: Harvard is playing games and will not give us an on-campus 
interviewing date.
  Three different recruiters give a different view of what was done 
with respect to Harvard. Yet General Kagan says: No. No. They all had 
full access at all times. If they did, then they are lying. If they did 
not, then she is giving us false information. She denies the entire 
incident.
  I think she should have stated her opposition in the Judiciary 
hearings. The proper approach should be to say: I hate the Solomon 
Amendment. I think it is the wrong thing to do. But just as Judge 
Roberts upheld the action with respect to a 12-year-old girl that was 
clearly not appropriate, because it was the law, I have a 
responsibility, as a lawyer, and lawyers are officers of the court, I 
have a responsibility as a lawyer at Harvard, even as I am voicing my 
objection, to say: The Solomon Amendment is in place, and I am going to 
respect it.
  She did not respect it. She denies that she did not respect it, in 
the face of testimony to the contrary from at least three different 
sources who were directly involved in the case. I do not find that the 
kind of behavior, regardless of my ideological difference with her, the 
kind I think a Justice of the Supreme Court should have.
  She has had much the same attitude with respect to the second 
amendment. She has taken a position of being above the law. She refused 
to declare support for the second amendment and when she was questioned 
about it, she simply dismisses it as ``settled law.'' Going back to the 
Solomon Amendment, wasn't that settled law? When she had an opportunity 
to act against it, she took that opportunity, feeling correctly that 
she would not be disciplined for it at Harvard. But now I do not think 
she can appropriately say she should not be questioned about it as she 
is being proposed for the Supreme Court.
  When clerking for Justice Thurgood Marshall in 1987, Kagan was faced 
with a challenge to the District of Columbia gun ban. With respect to a 
plaintiff's contention with respect to the District of Columbia's 
firearms status--as he said, the District of Columbia violated his 
constitutional right to keep and bear arms--She wrote: I am not 
sympathetic, and she recommended that the Court not even consider the 
case. The Court recently considered the case and has ruled otherwise in 
the Heller decision.
  So she is going to go to the Court--I assume she will be confirmed--
with at least two circumstances where she has taken firm positions in 
opposition to the Court she intends to join. In one case it was a 
unanimous decision that overturned her; it was not a 5-to-4 decision.
  My concern about her is that she has never shown any inclination 
toward impartiality. I do not mind people of strong opinions. This 
Chamber is filled with them. I do not mind judges who have strong 
opinions as long as they do not let those strong opinions get in the 
way of what the law says. I am afraid in her case she is one who will 
let her strong opinions get in the way of what the law says. For that 
reason, I intend to vote against her nomination.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. DeMINT. Mr. President, I rise in opposition to the confirmation 
of Ms. Kagan to the Supreme Court, and I would like to put this 
opposition in context with what is going on all around the country.
  All of us know, and we have seen on the news--and many of us have 
seen in person--that people are upset with what is happening in 
Washington. They are angry. They are fearful. They are frustrated at 
all the spending, the borrowing, the debt, the government takeovers. I 
keep hearing from people: What can we do? How can we stop it? Why is it 
happening?
  That is a question we need to keep asking here: Why is it happening? 
Why has this country, this Congress, and many Congresses before spent 
this country to the edge of bankruptcy--and continue to spend week 
after week? Even though the President and the majority are talking 
every week about the unsustainable debt, almost every week we are 
adding to that debt, adding new programs. It makes no sense.
  Our Founders believed it very important that every Member of 
Congress--the House and the Senate--the President, the Supreme Court, 
and the military officers all take an oath of office to protect and 
defend the Constitution. That may seem perfunctory, just something we 
do as a part of history. But that was not its intent because the 
Constitution is a document that limits what the Federal Government can 
do. If anyone reads it seriously, it is pretty clear its primary 
purpose is to limit what the Federal Government can do. It specifies a 
few things, such as protecting our Nation, making sure there is 
justice, making sure we have the rule of law and the enforcement of 
those laws across all of our States.
  But it says a lot about what we cannot do. The whole Bill of Rights 
says much about what the government cannot do to take our freedoms. The 
10th amendment itself says whatever is not specified in the 
Constitution is left to the States and the people.
  Even though all of us take that oath of office, it seems to me, after 
being here a number of years, that just about everyone here sets aside 
that Bible when they put their hands down and completely forgets they 
have just taken an oath to protect and defend a constitution that 
limits what we can do.
  Last year, when we passed this health care bill, Obamacare, a 
reporter asked Speaker Nancy Pelosi where in the Constitution did she 
find the authority to require people to buy a government-approved 
health insurance policy. All she could say is, ``Are you serious?'' In 
fact, if you talk about a limited constitutional government, as I often 
do in the Senate, you are considered a radical, even though all of us 
take that oath of office.

[[Page 15130]]

  What we have turned into here--and the President has used this phrase 
a lot--is a ``yes, we can'' Congress. It does not matter what it is, 
what problem comes up all across the country, we can do it, we can fix 
it. Government has a solution to almost anything because we do not pay 
any attention to the Constitution.
  The Constitution is a constitution of no, of what we cannot do. That 
is to protect us and to avoid where we are today, which is approaching 
a $14 trillion debt which is about to destroy our whole country.
  Think about this: In the world's great bastion of freedom that we 
call America, our Federal Government owns the largest auto companies. 
It owns the largest insurance company. It owns the largest mortgage 
companies. It controls our education system. It just took over our 
health care system. It controls the whole energy sector and our 
transportation sector. The rules and regulations and taxes that we put 
on businesses pretty much means mostly it controls all the business 
activity in our country.
  When Congressman Pete Stark was asked last week--in an interview we 
have seen all over the Internet--is there anything that the Federal 
Government cannot do, he said no because he had forgotten the 
constitutional oath of office.
  What is the Court's rule, as we think about Ms. Kagan, the Supreme 
Court, the confirmation process? What is the role of the Court? The 
intent is pretty clear that it is to watch over Congress, the executive 
branch, to make sure we do not get outside the bounds of the 
Constitution. If we do, the Court is supposed to say: No, you can't; 
that is unconstitutional. But the Court, over the years, has pretty 
much thrown that responsibility out the window.
  Back during FDR's days, in their interpretation of the commerce 
clause, it had essentially given Congress and the White House unlimited 
ability to do almost anything that comes up, any whim that we have. 
That is how we ended up with over $13 trillion in debt. I know this 
overactive government is really important. This idea of a limited 
government is very important.
  When Ms. Kagan was in my office and I asked: Does the Constitution 
limit us from doing anything, she really could not come up with a good 
answer. It is pretty similar to her hearings, when Senator Tom Coburn 
asked her: If the Congress passed a law, and the President signed it, 
that every American had to eat their fruits and vegetables every day, 
would that be constitutional? And she said: It would be a dumb law. But 
she would not say that is unconstitutional.
  Friends, if this government can tell us what we have to eat, it can 
tell us anything. We cannot claim to have any freedoms if this 
government can tell us what we have to eat. It is essentially the same 
thing as telling us we have to buy a government-approved health 
insurance policy. We cannot say no. But the Constitution is intended to 
make sure we do.
  Ms. Kagan talked a lot about precedents, which are just previous 
court rulings, not much about the Constitution being our standard. The 
problem with that is a precedent is a lot like what we used to call the 
gossip game. Some people call it the telephone game, where you have a 
bunch of people sitting around a table, and the person at the head of 
the table whispers a phrase to the person next to them. They whisper it 
to the person next to them, and it goes all around the room. The whole 
funny part of the game is, by the time it gets back to the person who 
started it, you cannot even recognize the phrase. It has nothing to do 
with what was originally said.
  That is exactly how precedent works. Once you throw the standard out, 
then the whole idea of a constitutional standard is out the window, if 
we have judges today who are making decisions by picking and choosing 
the precedent that agrees with their opinion rather than basing their 
decisions on true constitutional standards.
  I oppose Ms. Kagan's nomination because she, in my opinion, does not 
believe in constitutional limited government. She does not believe in 
the original intent of the Constitution but more of President Obama's 
belief of a more living Constitution. As President Obama said before he 
was elected, he sees the Constitution as a document of negative 
liberties because it tells the government what it cannot do. But it 
does not tell us what we have to do.
  It was never supposed to tell us what we have to do. But the 
progressives in power in Washington and many of our judges believe they 
need, through court rulings, to change that Constitution. What has 
resulted in that is the government controlling more and more of our 
lives, spending and borrowing money we do not have, and bringing our 
country to the brink of economic disaster.
  We cannot afford more ``yes, we can'' judges in our country. We can 
cannot afford more ``yes, we can'' Senators or Congressmen. And we 
certainly cannot afford another ``yes, we can'' President. The 
decisions that have been made about our economy over the last couple of 
years have brought our economy to its knees. This is no longer 
something we can blame on President Bush. In fact, the Democrats have 
been in control of policymaking, economic policy spending for 4 years 
now. This is not Bush's recession. This is the result of Democratic 
economic policies.
  This nomination will continue our move in the wrong direction because 
it will put another person on the Court who does not see their role as 
limiting what we can do in Congress, and this Congress desperately 
needs a Supreme Court that tells Congress no when we step outside the 
bounds of the Constitution.
  Mr. President, I believe America is looking at Congress closer than 
they ever have before. They expect us to make the hard decisions, to 
stop the spending, to stop the waste, to stop the borrowing, to stop 
the debt, to stop the government takeovers, and to stop our courts from 
taking our freedoms away. That is why I am opposing Ms. Kagan to be a 
Supreme Court Justice, and I encourage my colleagues to consider their 
vote and to vote no.
  Mr. President, I yield back.
  The PRESIDING OFFICER. The Senator from Mississippi.
  Mr. WICKER. Mr. President, we are not in a quorum call at this time. 
I am told there is a brief pause. I ask unanimous consent that I be 
allowed to speak as in morning business for 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.


               Coordination of Wind and Flood Perils Act

  Mr. WICKER. Mr. President, during this brief pause in the debate on 
the Supreme Court nominee, I rise to call to the attention of Senate 
Members my introduction of S. 3672, the Coordination of Wind and Flood 
Perils Act of 2010.
  This month is, of course, the fifth anniversary of Hurricane Katrina. 
We are still rebuilding on the coast, and we are still rebuilding in 
many areas of the gulf, in the South, as depicted on this map.
  Two weeks ago, I attended the opening of a municipal complex and 
library in the historic town of Pass Christian. The fact that we are 
just getting the money and just getting this library and city all 
rebuilt after 5 years is testimony to the extent of the destruction and 
the difficulty of funding projects like that. This is true in the 
public sector, and it is also true in the private sector.
  But one of the greatest impediments to rebuilding, and one of the 
main reasons Katrina is still not over for the people of Mississippi 
and other areas of the gulf is the lack of affordable insurance. This 
is true in Mississippi, and it is also true from Texas all the way 
through the gulf, south, down to the tip of Florida, and on up through 
the New England coastal States. Anywhere there is coastal exposure 
there is a problem with affordability and availability of insurance.
  I have had quite a number of visits to the coast in recent weeks, 
particularly in the last 100 days because of the oilspill. The recovery 
there is going to be a challenge.
  There will be speeches later on this month commemorating the 
anniversary and discussing the heroism and the resilience and the 
determination of

[[Page 15131]]

the people of the coast. All of this will be appreciated and necessary, 
but the truth is one of the best things that could be done for the gulf 
coast area--not just my State of Mississippi but in the entire area--is 
to resolve the issue of wind insurance versus flood insurance, and that 
is what S. 3672 is all about: coordinating the coverage between wind 
and flood perils coverage.
  Of course, for people in this area, for people in my State of 
Mississippi, you need hazard insurance, you need fire insurance, as 
does everyone, you need wind insurance, and you need flood insurance. 
Back in 1968, that was the year of Hurricane Camille. It also was the 
year it became apparent to this Congress that something needed to be 
done at the Federal level to cover water damage. Hence, the National 
Flood Insurance Program was established in 1968. Since that time, 
Americans have been able to get flood insurance through the NFIP. 
Actually, in 1973, this Congress in its wisdom made such coverage 
mandatory for people mortgaging property in flood zones.
  Let's fast forward to 2005, the year of Hurricane Katrina. Many 
victims who needed it didn't have flood insurance. One of the reasons 
they didn't have flood insurance is that the flood zone maps were 
wrong. I hope to a large extent this has been corrected. It is supposed 
to have been corrected now, and people in flood zones who have 
mortgages are required to have it. Oftentimes they cancel those 
policies, and that is something we need to attend to also, but that 
insurance is available.
  The problem is wind insurance. The private insurance coverage for 
wind damage has pretty much left the coastal areas of many of our 
States in the eastern part of the United States. So we have this 
situation now where a homeowner needs flood insurance through the 
National Flood Insurance Program. They need their own hazard insurance 
that they get through their local broker. Then, they probably have to 
resort to the State wind pool, a State program, because private wind 
insurance is not available to them.
  Another problem we had in 2005 after Katrina is that many homeowners 
found themselves caught in the middle between the issue of whether it 
was water damage in connection with the hurricane that caused their 
property loss or whether it was flood damage in connection with the 
hurricane that caused the loss. After hurricanes such as Katrina, if a 
homeowner has wind and flood insurance, the homeowner often has to 
prove in court whether it was wind or water that caused the damage. 
This is unacceptable. Let me emphasize this: Individuals who had all 
the appropriate insurance--wind and water--were, in many instances, 
caught in the middle and forced to go to court to watch the insurance 
carriers fight among themselves. My legislation would remove the burden 
of determining flood or wind loss allocation from the property owner 
and put it where it belongs--a decision to be made between the 
insurers.
  If my bill becomes law, insurance companies, including State-run wind 
pools and the National Flood Insurance Program, would have to pay a 
claim as soon as possible after the hurricane. If there is a dispute, 
each would pay 50 percent. The homeowner would be paid for the loss 
while the parties responsible for paying the claim would work out the 
details.
  My legislation--and again, it is S. 3672, the Coordination of Wind 
and Flood Perils Act of 2010--would prevent homeowners from having to 
go to court to determine what portion of the damages were caused by 
wind and what portion by water. This should not be part of the duties 
of the homeowner. Under my legislation, if there is a dispute between 
the parties responsible for paying the claim, the insured would be 
compensated immediately and the dispute between the insurers would be 
resolved by arbitration.
  This is only a small step. It doesn't answer the whole problem. I 
still support the concept of putting wind coverage under the National 
Flood Insurance Program on a voluntary basis, as my amendment would 
have done in 2008. It is an amendment that has passed the House of 
Representatives and it is known as the multi-peril concept. That did 
not get majority support in the Senate and is, frankly, unlikely to get 
that support in short order. They are having trouble with that concept 
in the House of Representatives, but I wish to emphasize that I still 
support the multi-peril concept. This is a step. It puts us on the 
right track and it removes the wind and water debate.
  I would suggest that my friends in the Senate look at this bill. I 
invite them to become cosponsors, and I hope we will be able to add 
this simple amendment to the law in short order.
  I thank the Presiding Officer and I yield the floor.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. LAUTENBERG. Mr. President, I have been in the Senate a long time. 
This is my 25th year of service. This is one of the most exciting 
moments I have seen here. Today we have an opportunity to fulfill a 
great responsibility and an honor, to be able to stand in this Chamber 
to declare our support for the President's selection of an outstanding 
nominee: Solicitor General Elena Kagan to be a Justice of the Supreme 
Court of the United States.
  Everyone is aware that she brings an intellect, experience, and 
knowledge of the law that places her among the few in this country so 
perfectly qualified to serve on this most important body of 
jurisprudence in the entire world.
  Upon the entrance to the Federal courthouse in Newark, NJ, there is 
an inscription that reads: ``The true measure of a democracy is its 
dispensation of justice.'' I was the author of that statement and I 
labored over it, short as it is, to reflect my view that reflects a 
fundamental principle of our democracy and the values on which the U.S. 
Constitution was founded. These values pervade throughout our 
government and legal system, and especially in the decisions of our 
Nation's highest Court.
  I met with Solicitor General Kagan to hear her views and her personal 
history, and I watched the testimony before the Senate Judiciary 
Committee. I have no doubt that, if approved, Solicitor General Kagan 
will be an outstanding defender of our Constitution in the dispensation 
of justice entrusted to a Supreme Court member. That is why I hope that 
with this historic opportunity, the Senate will stand up for what is 
right, to confirm Ms. Kagan's appointment to become a member of the 
highest Court in our country because of her outstanding qualifications.
  When I met with her, I told her the people of New Jersey were excited 
about her nomination not only because of her outstanding educational 
achievements--by the way, graduating from Princeton, NJ, summa cum 
laude, and contributing so much in her life through her commitment to 
public service. The excitement is generated because Ms. Kagan is a 
trailblazer who has paved the way to the top of the legal profession 
that has helped open doors to women as well as men. She was the first 
woman chosen to be dean of Harvard Law School. She is the first woman 
ever to have served as Solicitor General of the United States, a post 
many call the ``tenth Justice'' of the Supreme Court. We must remember 
what that job is, what that task is, and that is to appear on behalf of 
the United States as an advocate, having tested abilities to bring the 
case to the Court, defending our country, and experience second to none 
in that courtroom.
  Let us not forget that in the last year she has amassed an impressive 
record as Solicitor General. She has filed more than 3,500 pages of 
merit briefs before the Court, and she has argued cases on a broad 
range of issues from protecting children from pedophiles to protecting 
Americans from terrorists. If she is confirmed, of nine members of the 
Court, the proportion of women will be at its highest level in history, 
with women holding three seats.
  She is the granddaughter of immigrants, and that experience shaped 
the world in which she grew up. Similarly, I came from parents brought 
to America by my grandparents, who had the common experience of so many 
of the struggle to learn a new language, adopt new skills to get by, 
mustering the determination to help their children rise above their 
circumstances in this new

[[Page 15132]]

world. Though my parents worked very hard, they were never able to 
accumulate valuables. Instead, the heritage they left my sister and me 
was a set of values and a love for America with its freedom and 
opportunities and appreciation for what this country gives us all. They 
often reminded us that there were those far worse off than we and we 
had an obligation to contribute if we could to give something back to 
our community.
  These same values are inherent in Ms. Kagan's views as she expressed 
them to me. Her father was a housing lawyer. Her mother was a public 
schoolteacher for 20 years, and she carries the heritage of their 
public service dedication. Solicitor General Kagan's career has 
confirmed her own commitment to public service, protecting rights and 
individual freedoms.
  She served as a clerk to Justice Thurgood Marshall whom she, as many 
other Americans, greatly admired. Frankly, it is sad to see that some 
on this floor during her confirmation hearings attempted to discredit 
Solicitor General Kagan's reputation because of her association with 
Justice Thurgood Marshall. Justice Marshall was an icon who expanded 
respect and tolerance in America as few others have in our history. He 
argued Brown v. The Board of Education. He was the first African 
American to serve as Solicitor General of the United States, at which 
he excelled, amassing a remarkable record of Court victories. He was 
the first African-American Supreme Court Justice and distinguished 
himself as one of America's greatest jurists.
  Some on the other side, in order to keep this appointment from being 
confirmed, have gone so far in their desperation to denigrate Ms. Kagan 
that they have labeled Justice Marshall as some radical on the bench 
and attempted to tear apart the years of brilliant contributions of 
this great man.
  I want to be clear. The fight to end racial discrimination may have 
been radical to some, but it was the right fight and the right cause, 
and there will never be anything shameful about a person whose great 
mind and ferocious eloquence made him a giant in the civil rights 
movement. Shame on those who would denigrate those achievements.
  Ms. Kagan's lifelong dedication has been to break down barriers and 
work for what is right, not simply popular. At Harvard Law School, one 
of her accomplishments as dean was to welcome different views among 
faculty members. She believed--and exercised that belief--that her 
students would not get the legal education they deserved if it was 
limited by one ideological perspective. She made it a point to add 
faculty members who came from different points along the political 
spectrum. No wonder Solicitor General Kagan's nomination has not only 
been endorsed by liberals but also by conservatives, including Ken 
Starr, Ted Olson, and Miguel Estrada.
  Considering a Supreme Court nominee is one of the most important 
responsibilities we have. The Supreme Court makes decisions that 
determine the very underpinnings of our country's character. It has a 
direct say on the rights--or lack thereof--our children and 
grandchildren will have. The Court can decide whether big corporations 
and the rich and famous should have a stronger claim to justice than 
the average person. The Court sets the table for government power--
whether it goes unchecked or is responsible to the people. The rulings 
of the Court affect everyday New Jerseyans and everyday Americans. 
There is no doubt in my mind that Ms. Kagan understands that.
  After careful consideration, I am going to proudly vote yes to 
confirm a person who I believe will be one of the great Justices of the 
Supreme Court of the United States of America.
  Mr. President, I hope there isn't this continuing attempt and process 
we have seen here where it is the objective of individuals in this 
room--typically on the other side of the aisle--to stop things from 
happening, to be obstructionists. There is no point in exercising that 
kind of foolishness. This is a time to step up and say we want the best 
we can get for our Supreme Court. President Obama has chosen carefully 
and wisely, and we want to see Ms. Kagan seated on the Supreme Court. I 
hope my colleagues will vote affirmatively to make sure that happens.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Ms. LANDRIEU. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                             Small Business

  Ms. LANDRIEU. Mr. President, I understand we are in controlled time. 
I will speak for the next 10 minutes, and if someone else comes to the 
floor, I will be happy to yield.
  I know the discussion today has primarily been on our new potential 
Supreme Court nominee, but that is not why I have come to the floor. I 
have come to the floor to talk about an issue I have spent a good bit 
of time talking about in the last several weeks--particularly the last 
week--and that is the issue most Americans have on their minds right 
now, and that is, when is this recession going to end? That is a good 
question. My answer to that is that this recession is going to end as 
soon as we can get Main Street moving again.
  The First Lady has been so wonderful in her advocacy to help 
Americans understand the importance of activity and moving, with her 
campaign ``Let's Move,'' to help us all get into better shape--
particularly the young children of our country. I think we can really 
use almost that same slogan for Main Street--to get Main Street moving 
again, percolating again, and generating jobs, because that is the only 
way this recession is going to end. We can pass bill after bill up here 
regarding big bank bailouts, saving the big auto manufacturers. We can 
step up and send money to big, troubled banks. But until we figure out 
a way to get money to Main Street, this recession is going to be with 
us a long time.
  I think that is really what is on people's minds, at least in 
Louisiana, my home State, the places with which I am very familiar. Our 
situation in Louisiana is even more complicated, and right now I am not 
going to take the opportunity--but I will before this session ends--to 
talk about the gulf coast disaster and the moratorium that has been 
placed on drilling in the gulf, which has exacerbated our problem. 
Suffice it to say that on Main Street all over America, people are 
wondering--we know that Supreme Court Justices are important, that 
health care is important, and we know that stabilizing the financial 
situation is important.
  When is Congress going to focus on Main Street and small business? 
That is what our bill, the small business lending bill and particularly 
the small business lending fund, does.
  I want to start the first few minutes of this discussion--there will 
be some Members coming down to the floor--by reading an e-mail I 
received in my office 2 days ago. This e-mail was so well written and 
so passionate and so encouraging to me that I was afraid it was not 
real. I actually had my staff call the man who wrote it to make sure 
before I came to the floor of the Senate, because I did not want to be 
fooled or embarrassed by someone sending some kind of form e-mail and 
not being sure it was correct.
  I want my colleagues to know that we called Mr. Bryan Gipson, Sr. I 
am going to read his e-mail because I think this says better than I 
could what is at stake for those who have tried to obstruct this bill, 
unfortunately, for many of my friends on the other side:

       Dear Senator Landrieu, I wanted to start this e-mail by 
     telling you I am a life long Republican and a former member 
     of your district. I currently reside in Ocean Springs, 
     Mississippi, and I am a Commercial Real Estate Broker. I 
     watched with great interest today as the Senate debated H.R. 
     5297, the Small Business Jobs Credit Act. I was very, very 
     disappointed by the unjustified stonewalling of the 
     Republicans. To think that a Bill, whose only purpose is to 
     provide funding for small business, create jobs and

[[Page 15133]]

     help the most battered segment of our economy recover from 
     the worst recession of all time could be held up because one 
     side had their feelings hurt because they don't have enough 
     amendments is sickening.
       Senator Landrieu, I am a commercial real estate broker. My 
     company sells hotels, throughout the southeastern United 
     States. We have not completed a transaction in almost two 
     years. There is no third party commercial financing for 
     commercial real [estate] in the United States today our 
     industry has been battered because of this. Hotels are 
     closing through out this country and workers are being laid 
     off. These workers make beds and clean rooms. They work as 
     wait staff, accountants, reservationists, and front desk 
     personnel. Thousands of these hard working Americans have 
     been laid off. It's time for Congress to do something to put 
     Americans back to work on the jobs.
       As I said, I am a life long Republican. I was sick to my 
     stomach to see the leadership of the Republican Party do 
     everything in their power to kill this bill. Please remind 
     them they have lost my vote. I will do everything in my power 
     to defeat my two Republican Senators when election time 
     comes. It is plain to see the Senators of the Republican 
     Party are holding the American economy and it's workers 
     hostage for selfish, partisan politics, and the American 
     voters are tired of it.

  I will not read his last sentence because I do not think it is 
appropriate for the Senate.
  Today I had the opportunity to speak with one of the region's most 
outstanding community bankers by phone. My phone call was prompted by a 
roundtable I held earlier this week--it was not yesterday but the day 
before--with some of the country's most outstanding entrepreneurs. I 
had several individuals from Louisiana--surprising to many people. You 
may be surprised to know that New Orleans, LA, has been on the front 
cover of Entrepreneurial magazine twice in the last year because after 
Katrina, some of the leaders, including myself, had the sense to say: 
We are not going to build back just what we had; we are going to build 
back better and stronger, and part of that is inspiring young people 
around the country to come and start new businesses in New Orleans and 
help us build a greater city and a better region.
  We also had individuals from all parts of the United States. One of 
the two most interesting individuals who owns arguably the most famous 
small business in America today, Georgetown Cupcake, better known as DC 
Cupcakes, the reality show--Sophie and Katherine were in my committee 2 
days ago. I want to tell you what they said, and nobody is going to 
believe it. There is a transcript of this record.
  This is one of the most famous, most popular small businesses in 
America. They have their own reality show. They testified to my 
committee that they could not themselves get a business loan. They 
knocked on bank after bank until finally a community banker--the 
chairman of the bank is Ron Paul. I spoke with him today. It is 
EagleBank right in this region. They finally gave them a loan which 
they paid back in 3 months. For 2 years they used every credit card 
they had. They used their entire savings. Even with a line 2 blocks 
long--if anyone in Washington, DC, doesn't know about it, they should 
know about it. I have not been there, but my children have been there. 
They ask me to take them there all the time. The line is 2 blocks long, 
I hear, every night.
  If a small business not 10 minutes from the Capitol, with a line 2 
blocks long, cannot get a loan from a bank and has to go through all 
this trouble--but they finally, thank goodness, found a community bank 
to lend them the money--do I have to say anymore about what we are 
trying to do?
  Another young woman showed up in our committee. She graduated magna 
cum laude from Duke University. She received a scholarship from the 
Fulbright Scholarship Program. She went to Sri Lanka to work for a year 
under the Fulbright Scholarship Program. Her idea as a scholar was that 
maybe she could create a business using environmentally sensitive 
methods and practices designing very fashionable clothes that she could 
then sell to college students because our college students today are 
much more sensitive to the environment and to these sorts of things 
than we were when we were in college.
  She had a very brilliant idea. She had a great market. She went to 
bank after bank with $250,000 worth of purchase orders and could not 
get a loan and does not have one today.
  If our young people who are graduating at the very top of their 
class, who have the most extraordinary ability to create jobs in 
America, cannot get money in their hands, we should close these doors 
and turn these lights off because it is never going to get fixed. That 
is what this bill tries to do.
  It has been stopped by petty politics or slowed down considerably. We 
are still hoping we can get this done by the other side, which wants to 
pretend this is not important or that the Small Business Lending 
Program that got 60 votes on the floor of the Senate is somehow 
damaging to this bill. It is the heart of this bill.
  I want to use fact versus fiction to clear up another point. I could 
go on and on about what these young entrepreneurs running small but 
extraordinarily exciting businesses said at that roundtable. This bill 
will help them, and we are going to continue to do more.
  One of the things I want to speak about today is fact versus fiction 
about the one article that has criticized us. It was an AP article that 
was written 2 days ago and was circulated in defense of the opposition, 
so I want to take this issue by issue.
  The article was written by Daniel Wagner of Associated Press. When we 
called him, he admitted that he failed to call anyone from our office 
or the Small Business Committee to get any real information about the 
bill. He had not written in an updated way. He had gotten this 
information some months ago. He was frustrated. He couldn't get 
Treasury to respond, so he just wrote the article.
  The problem is half of his article is completely factually wrong 
about this bill. I want to go point by point.
  He comments in his article:

       Federal Reserve Chairman Bernanke and others have 
     questioned whether the problem is lack of capital or if there 
     simply are not enough creditworthy borrowers.

  I have given two examples in the last 2 or 3 minutes about 
creditworthy borrowers. I think every Member of Congress knows a dozen 
businesses that are good, solid businesses with good cashflow and a 
good product with a good record that are beiing told they cannot get 
funding. If you do not believe me or what you are hearing back in your 
States, the fact is our Chairman stated last month:

       It seems clear that some creditworthy businesses, including 
     some whose collateral has lost value but whose cash flow 
     remains strong have had difficulty obtaining the credit they 
     need to expand and, in some cases, even continuing to 
     operate.

  Part of the article, quoting the Chairman, is factually wrong. 
Chairman Bernanke did not say that. Chairman Bernanke said what I just 
quoted.
  The second fiction he said was that Congress was at work on a new 
program to send $30 billion to struggling community banks. No, that is 
not what our bill does. We do not send $30 billion to struggling 
community banks. We allow healthy banks, not struggling banks, healthy 
community banks to apply, completely voluntary, for money from the 
Treasury so they can increase the capital they have to lend hopefully 
to wonderful young people such as the two young women who started 
Georgetown Cupcake, now better known nationally as DC Cupcake, and 
other small businesses that are hiring people and increasing their 
locations and starting to bring this recession to an end.
  The facts are that you have to be a healthy bank to apply for this 
program.
  The next thing Mr. Wagner said--and he has retracted this already. We 
appreciate him retracting this statement. He said:

       Under the new program, the 775 banks on the government 
     problem list can qualify for the bailout.

  A, that is not true, it is not a bailout. And B, they are expressly 
prohibited in our bill. The 775 banks on the problem list would be 
ineligible to receive capital. Only the strongest banks, and they are 
registered as CAMELS 1, 2, and 3, not 4 and 5. Finally he said:

       This time the money is more likely to disappear as a result 
     of bank failure and fraud.


[[Page 15134]]


  It is not the community banks we have to worry about failing. Their 
record has been extraordinary. In fact, there was not one bank in 2005, 
2006, all the way up to 2007--there were less than a handful of 
community banks that failed. In 2009 and 2010, those numbers shot up 
because of the despicable and reckless policies perpetrated by many big 
banks and international lenders which put the whole economy at risk 
because of what they did, and then that had a ripple effect on our 
economy.
  It is not going to be the small community banks that take this Nation 
down, I can promise my colleagues. It is going to be the small 
community banks and other nonbank lenders in places that have a hard 
time getting the capital they need to expand that are going to lead 
this country out of the recession.
  So I wish to put this up--this ``Party of No''--because, 
unfortunately, we have on the other side an unprecedented number of 
objections. This is the graph that I think Senator Stabenow has used 
for 246 objections. It is one thing, of course, politically, if you 
want to say no to the President. I don't think it is great, but 
sometimes you have to, if you don't believe the President is right. I 
understand that. But to say no to the small businesses of America, most 
of which have done absolutely nothing wrong but try to build their 
businesses and try to expand their businesses? To say no to them is one 
no gone too far.
  I wish to put up the chart about the businesses that will create 
jobs, because if we would spend some time focused on passing this 
bill--and I hope this chart I am using is an effective visual for the 
share of net new jobs by firm--these are our own statistics for 1993 to 
2009. So for the last 16 years, 65 percent of new jobs have come from 
small firms. This goes to show that if we can get this bill--and maybe 
there are others but this bill for certain because it was built with 
bipartisan support. It has $12 billion of tax cuts targeted directly at 
small business. It is a $30 billion small business, healthy bank 
partnership fund that will help spur investments on Main Street, and it 
is an increase of lending limits and loan guarantees through the Small 
Business Administration for their very tested and proven and successful 
lending programs. This bill could have a tremendous impact on Main 
Street throughout America.
  We have only a few more days here. The leaders are still talking 
about what can be worked out. I would suggest we get this bill on the 
floor, we agree to one amendment on both sides, and get this bill 
passed for the American public. I know the Chair has been supportive, 
and I see Senator Cantwell and others on the floor who have been 
arguing successfully and passionately for this bill. When people say we 
need more amendments, this bill has been built with bipartisan 
amendments, section by section--I have said this over and over again--
every section of this bill.
  We call this chart our red-line, four-page outline of this bill. It 
is well known and has been well reviewed by not only Members here but 
staff and reporters as well who can see for themselves. This is a 
Snowe-Landrieu; Crapo-Landrieu-Risch; Snowe-Landrieu; Snowe-Merkley. I 
mean, every single section has been bipartisan, and we now have a 
strong bipartisan vote for the lending program. So all we need is for 
the leaders to agree on one amendment. It could be the 1099 amendment, 
which has generated a great deal of interest around here. Let's make a 
decision about how we move forward with that provision. I think it 
needs to be adjusted or completely repealed, but that is worth 
debating. Let's get that done and move this bill forward.
  In addition, as I yield the floor for the Senator from Washington, we 
continue to receive more and more endorsements. Today, we got a letter 
from the United States Conference of Mayors:

       On behalf of the Nation's mayors, I am writing to thank 
     you, Senator Landrieu, for supporting and sponsoring the 
     Small Business Jobs Act. The U.S. Conference of Mayors firmly 
     supports this legislation and urges all Senators to vote for 
     its immediate passage.

  Mr. President, I ask unanimous consent to have printed in the Record 
the entire letter.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                 The United States


                                         Conference of Mayors,

                                   Washington, DC, August 4, 2010.
     Hon. Mary L. Landrieu,
     Chairwoman, Committee on Small Business and Entrepreneurship, 
         U.S. Senate, Senate Russell Office Building, Washington, 
         DC.
       Dear Senator Landrieu: On behalf of the nation's mayors, I 
     am writing to thank you for sponsoring the Small Business 
     Jobs Act of 2010, H.R. 5297. The U.S. Conference of Mayors 
     firmly supports this legislation and urges all Senators to 
     vote for its immediate passage. Mayors believe it will create 
     jobs to help put Americans back to work. It will do so by 
     increasing small business access to credit. You and other 
     supporters of the bill understand that even in these 
     challenging economic times, many small businesses are ready 
     to expand their operations but have not been able to borrow 
     the money they need to move forward. This legislation would 
     assist them by establishing a $30 billion lending pool for 
     small community banks that make loans to small businesses. It 
     also calls for increasing the limits on Small Business 
     Administration (SBA) loans available to small businesses.
       Across our nation many local communities are suffering from 
     double digit unemployment. Every day mayors hear from 
     residents who have lost their jobs. They tell them they don't 
     want a hand out. They just want a decent paying job that will 
     enable them to support their families. Nationally and 
     locally, small businesses provide the vast majority of jobs 
     for local residents. By increasing small business access to 
     credit, this legislation will help create hundreds of 
     thousands of jobs for unemployed residents in local 
     communities across our nation.
       Again, thank you for your support. Mayors stand ready to 
     work with you to ensure the immediate passage of this 
     important legislation. Please feel free to contact me or 
     Larry Jones of my staff if you have any questions.
           Sincerely,
                                                      Tom Cochran,
                                       CEO and Executive Director.

  Ms. LANDRIEU. This recession is a national recession, but you feel it 
in every town, in every community, in every city where mayors and 
Governors out there--Democrats and Republicans--are fighting every day 
to bring vitality back to their communities. This bill has the 
potential to help them, to be some wind under their wings and to get 
this job done.
  So I am proud to have the thousands of mayors in our country who have 
stepped up to support this legislation. I am also proud to have almost 
28, if not 30, Governors who have written personally, sometimes 
numerous letters, to say they support this legislation.
  I have used the time in conclusion to rebut the only article we know 
of that was a negative one. We have had many positive articles and 
editorials, and we are grateful because the bill is self-explanatory. 
The one reporter who wrote, I thought, a very misleading story has 
retracted portions of it, which he admitted were not accurate, and I 
have given the detail to rebut the other sections of his article. But 
we continue to pick up endorsements.
  The bill is bipartisan. We have to get Main Street moving again. When 
we do--and only when we do--will this recession end and our 
constituents can go back to work or they can fulfill their dreams to 
build a business of their own that can employ them and bring security, 
prosperity, and happiness to their families. But this Congress should 
act and we should act now--in the next 24 hours.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Washington.
  Ms. CANTWELL. Mr. President, I thank the Chair, and I thank the chair 
of the Small Business Committee for her continued advocacy on this 
issue. It is so important for us to help small businesses; that is, if 
you believe they are the engine of economic growth for our economy, as 
I do, and as I think the chairwoman of the Small Business Committee 
does.
  We know 75 percent of new job creation comes from small business. So 
we can continue to talk about the economy, we can continue to debate it 
or we can get down to the business of helping small business, as this 
bill does by outlining three principal programs: tax credits for small 
businesses on depreciation to make new investments;

[[Page 15135]]

an enhancement of the 7(a) and 504 loan programs, which are successful 
programs for lending to small businesses where their capital has fallen 
off because the program ended in June, so we basically have a lot less 
money for small businesses; and a small business lending program that 
could help small businesses grow and help our economy at this critical 
point in time.
  We are here tonight because we only have a few days left, but the 
chair of the Small Business Committee is not giving up on this issue 
and neither am I. I am saying it is important enough for us to stay and 
make sure we get this legislation passed because we want to grow small 
businesses. I know my newspaper, the Seattle Times, had this to say: 
``Nothing should be more nonpartisan than putting people back to 
work.''
  I think that says it all. If you are down to this, a program that 
could help grow small businesses, why would you be partisan at a time 
when our economy has huge unemployment and we have had such stagnant 
growth? Why would you continue being partisan instead of passing this 
legislation?
  In fact, I haven't actually heard people on the other side say if we 
got through the cloture motion that they wouldn't support this 
legislation. No one has come to the floor and said: I will not support 
this legislation with this language in it. In fact, we have kind of had 
people indicate the opposite. So if that is the case, let's have the 
votes. Let's vote on this legislation and let's put people back to 
work.
  One of the important things I wish to talk about is this small 
business bill is a lending program. As somebody said to me today: When 
you can't figure out how to stop something, then make up something that 
it isn't and claim that it is. That is exactly what has been going on, 
on the other side. They can't figure out a reason why they do not like 
this, but if they can pretend it is TARP-like, then maybe they have a 
chance of defeating it.
  Well, this is not TARP-like. This is a small business lending fund, 
which is a voluntary program for small businesses, and it uses 
community banks as a conduit. So it is literally, if you will, similar 
to 7(a) and 504 programs in the sense that they are designed primarily 
to get capital to small business. Those two programs are direct lending 
programs that help with the partnership of banks, and this is a program 
we are creating--the Small Business Lending Fund--that helps, 
especially given that during this huge economic downturn, two-thirds of 
job losses in America since 2008, because of the implosion, have 
impacted small business the most. So when we look at all the job losses 
from 2008 to 2010, 81 percent of them are from small businesses.
  So we can either design a program that is about helping to get 
capital to small businesses and move our economy forward or we can go 
home for the August recess and say we took partisan votes. I am for 
trying to solve this problem.
  What this is not is a TARP bill. I love the comparison people make, 
because I didn't support the TARP legislation. But just by comparison, 
TARP was an open-ended bailout of Wall Street firms. It basically was 
the U.S. Government buying toxic assets. That is what it was. I call 
it, at times, a blank check, and being able to say no strings attached 
to firms that were failing and then actually get assistance from the 
government. In fact, if you look at it more specifically, TARP was an 
open-ended bailout. It basically said: Here are the resources--targeted 
at Wall Street. It bought toxic assets. The banks weren't viable. They 
basically got the revenue because people were concerned they were 
failing. Today's estimates are--we don't know what tomorrow's estimates 
will be--that it basically cost the taxpayers $100 billion.
  So none of these things are what the Small Business Lending Fund is. 
The Small Business Lending Fund isn't a bailout, it isn't targeted at 
Wall Street, it doesn't buy toxic assets, it is not for banks that are 
not viable, and it doesn't cost the taxpayers any money.
  So the other side is just trying to say this because they do not have 
anything else to say about this program. What they need to be able to 
do is to explain to their constituents why we have lost so many jobs 
with small businesses and we don't have a proposal on the table to help 
grow small businesses.
  But I will tell you what this Small Business Lending Fund is: It is a 
program that is lending to small businesses, it is targeted at Main 
Street, it increases lending instead of buying toxic assets. TARP was 
just about buying toxic assets. This is about saying to banks: Show us 
a plan. If you have a plan on how you are going to increase lending to 
small businesses, then we will give you access to capital. So nothing 
could be further from the way TARP worked. TARP bought toxic assets and 
bailed out banks with no strings attached, and this is a lending 
program. The banks have to be healthy and viable. Nobody asked AIG or 
Citigroup or Goldman Sachs if they were viable. They just wrote a 
check. In fact, here you have to prove you are viable. This actually 
saves taxpayers money; that is, in essence, the Federal Government is 
going to be making loans available to small businesses and they will 
have to pay for that access to capital. That payment back to us is 
expected to generate over $1 billion.
  So nothing could be further from the truth in how these two programs 
work. The bottom line is back to that small business job loss and how 
we are going to actually increase job growth for the future. I actually 
think this number is quite significant for our economy and that if we 
want to help small business, we will get them capital.
  One banker from my State sent a message to me and said this:

       We would absolutely use the funds for small business 
     lending. Our bank has a backlog of $50 million to $70 million 
     of loan requests, which is counter to statements of soft loan 
     demand. We have reduced our lending to preserve capital as 
     expected by the regulators.

  They did that because that is what regulators expected. He went on to 
say:

       This legislation would give us the capital to significantly 
     increase lending.

  That is a banker from my State. So that is what they are up against. 
They know this program will help them with the backlog of requests they 
have and the requirements they also have from regulators to keep 
capital and to have reserves. So this is about getting small business 
lending flowing.
  When we think about the fact that this will generate, as some people 
say, an estimated $300 billion of stimulus to our economy, it is 
critical we get this program going. We have experienced six straight 
quarters of decline in overall commercial and industrial lending, and 
the total cumulative decline in the fourth quarter from 2008 until 2010 
of March of this year has been a 20-percent drop--over $315 billion 
taken out of our economy.
  So we can do something in the next couple days, if my colleagues will 
show the dedication of breaking partisan gridlock and also the 
commitment to stay here to get this legislation done. We can start to 
give hope to small businesses.
  My colleague mentioned all the small business organizations that 
support this legislation. I would like to point out, some people say 
this might be about banks or it might be about community organizations. 
It is not. We are working with them because this program is designed to 
use them as a conduit, but we are tonight talking about this because we 
are talking about small businesses. We are talking about the gentleman 
from Mississippi who sent a letter to the chairwoman. We are talking 
about people who do not have a hired lobbyist back here representing 
them to go up and down the halls. They are depending on us.
  We have heard these stories throughout America, of businesses not 
getting access to capital, of people having performing loans cut right 
out from under them, of people who had a bank that was basically 
providing small business capital who cut that access to capital and 
they had to do all sorts of things to keep their businesses going.
  We can continue to have job loss in America or we can start creating 
jobs and do so by investing in small businesses. I hope we will get 
this legislation moving in the next 2 days; that we

[[Page 15136]]

will be able to basically overcome the partisan gridlock. As the 
Seattle Times said, ``There is nothing that should be more nonpartisan 
than putting people back to work.'' I could not agree more. So I hope 
we get this legislation passed in the next 2 days.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Ms. LANDRIEU. I understand the time controlled by the Democrats is 
coming quickly to an end. I ask for 2 more minutes, if that is OK, to 
wrap up.
  The PRESIDING OFFICER. The Senator has 5 minutes.
  Ms. LANDRIEU. Five minutes. That is great.
  I thank the Senator from Washington, who has been a partner on this 
bill with me from day one. She is a member of the Small Business 
Committee, quite an expert in the field of small business financing 
having built her own small business successfully and helped many others 
to build others. She brings that expertise to the Senate. I appreciate 
her focus and commitment.
  Together with some of our other colleagues we have worked the extra 
hours and time, and we are still hopeful that we can get this bill done 
before we leave for the August break to go home and work in our States 
through that time.
  I want to read just another short paragraph into the record. This is 
going to appear, I understand, in the Wall Street Journal tomorrow. I 
received a copy of it today. It is going to be in response to a 
wrongheaded editorial by the Wall Street Journal. They entitled their 
editorial a couple of days ago, ``Son Of TARP.''
  As Senator Cantwell from Washington said, this doesn't look like 
TARP, it doesn't walk like TARP, it is not TARP. But there are a few 
critics out there who, because they cannot say anything bad about it, 
want to put a bad name on it and scare people away.
  This gentleman, Mr. Richard Neiman, let me say, first, is a 
superintendent of banks for the State of New York. He knows something 
about them, and is a member of the TARP Congressional Oversight Panel. 
So he most certainly understands TARP since he is an overseer of TARP. 
I think he would know if this was TARP, but this is what he writes--
``Small Business Lending Fund Will Help Recovery, Jobs.''

       Your editorial, ``Son of TARP'' [on] July 30 is 
     unfortunately titled, and underestimates the potential of the 
     proposed Small Business Lending Fund.
       Small business growth is the only way out of this 
     recession, yet our entrepreneurs are not being provided the 
     credit they need, as the TARP Congressional Oversight Panel 
     often hears from small business owners. Our recent report on 
     the issue demonstrates that, during the crisis, lending to 
     small business fell by 9 percent at our Nation's largest 
     banks. . . .

  In other words, the Nation's big banks took the TARP money and cut 
lending to small businesses. That is what happened. This bill is to 
reverse that and to give small banks a fighting chance, and small 
businesses, to get a voluntary lending fund to start flowing capital to 
small business. He says:

       Unlike TARP, the SBOF would incentivize banks to lend by 
     lowering the dividend rate at which banks must repay the 
     government if banks meet lending performance metrics. 
     Further, the SBLF removes the TARP stigma that discouraged 
     small banks from participating in government program. . . .
       The SBLF is not a sequel to TARP,

  It is not the son of TARP, it is not the daughter of TARP----

     but it can be a segue toward a stronger future for our 
     Nation's small businesses and their employees.

  I could not have said that better myself. I ask unanimous consent to 
have the letter printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

          Small Business Lending Fund Will Help Recovery, Jobs

       Your editorial, ``Son of TARP'' (July 30) is unfortunately 
     titled, and underestimates the potential of the proposed 
     Small Business Lending Fund (SBLF).
       Small business growth is the only way out of this 
     recession. Yet our entrepreneurs are not being provided the 
     credit they need, as the TARP Congressional Oversight Panel 
     often hears from small business owners. Our recent report on 
     the issue demonstrates that, during the crisis, lending to 
     small businesses fell by 9% at our nation's largest banks, 
     and the bankruptcy of nonbank business lenders such as the 
     CIT Group has further limited credit options.
       The financial crisis and recession have created the lack of 
     demand for credit that your editorial points out, but it is 
     as important to point out the lack of supply. Small banks are 
     reluctant to take on more risk when small businesses' 
     customer base is weak. Breaking this stalemate requires old-
     fashioned underwriting to identify the good deals which are 
     still waiting to be made.
       The SBLF is intended to provide public-sector support to 
     bring credit- and lending-worthy parties back to the table. 
     Unlike TARP, the SBLF would incentivize banks to lend by 
     lowering the dividend rate at which banks must repay the 
     government if the banks meet lending performance metrics. 
     Further, the SBLF removes the TARP stigma that discouraged 
     small banks from participating in government programs that 
     support lending. It is these banks that are the primary 
     source of credit for small businesses which lack the same 
     access to capital markets as large companies.
       The SBLF is not a sequel to TARP, but it can be a segue 
     toward a stronger future for our nation's small businesses 
     and their employees.
                                                Richard H. Neiman,
                                                         New York.


                         The Pigford Settlement

  Ms. LANDRIEU. In my final minute I would like to change subjects and 
speak about another subject that is very important to people in 
Louisiana, particularly to some of my African- American farmers and the 
small communities that they primarily reside in throughout my State.
  These are farmers who were blatantly discriminated against in the 
last several decades. We have a bill right here before us. It is 
referred to as the Pigford settlement. This group of farmers took their 
grievances to the courts. Before they could get a final judgment from 
the courts, the Justice Department stepped in and smartly attempted to 
settle this situation because the Federal Government is probably going 
to be very liable for past discriminations that were blatant and 
proven.
  We came up with a fair way to solve this issue, to get money to many 
African-American farmers. We have acknowledged there were some wrong 
things done by the Department of Agriculture and by the Federal 
Government. We want to try to make amends. We cannot make everything 
right and everything perfect, but the Pigford settlement is a fair and 
just resolution to this issue. One thousand African-American farmers in 
Louisiana would be benefited by this settlement.
  Again, this is being held up. I don't understand why, but I wanted to 
lend my voice to say that this settlement is not just about correcting 
past wrongs but about ensuring future prosperity. It is time for 
Congress to end the 12-year delay and approve this settlement as 
quickly as possible.
  The PRESIDING OFFICER. The time of the Senator has expired.

                          ____________________