[Congressional Record (Bound Edition), Volume 156 (2010), Part 11]
[Senate]
[Pages 15215-15243]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

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

  The PRESIDING OFFICER. The Senate will proceed to executive session 
to consider the following nomination, which the clerk will report.
  The legislative clerk read the nomination of Elena Kagan, of 
Massachusetts, to be an Associate Justice of the Supreme Court of the 
United States.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. DODD. Mr. President, I rise this afternoon to express my very 
strong support for the nomination of Solicitor General Elena Kagan to 
serve as an Associate Justice on the U.S. Supreme Court. I would like 
to thank Chairman Leahy and Ranking Member Sessions for their work 
during the Judiciary Committee's recent hearings, as well as Majority 
Leader Reid for moving Solicitor General Kagan's nomination through the 
Senate confirmation process as he has.
  There are very few powers exercised by this body that are more 
important than its constitutionally mandated duty to give advice and 
consent on the President's judicial nominations. The very essence of 
our Nation's government rests on the supremacy of the rule of law, and 
the Constitution is the highest embodiment of that principle. The men 
and women whom we confirm to this Court are more than just judges. As 
the chief interpreters of that seminal document, the Constitution, they 
are guardians of the supremacy of the rule of law, upon which the 
integrity of our entire system of justice has been built.
  It is, therefore, no surprise that nominees to our Nation's highest 
Court are subjected to such an intense level of scrutiny during the 
Senate's confirmation process. Nevertheless, the Constitution does not 
lay out a precise roadmap for how to do this. Therefore, each Senator 
must decide for him or herself what criteria to use when evaluating the 
merits of an individual Supreme Court nominee.
  For my part, I have used the same, simple three-part test for Supreme 
Court nominees since 1981, when I voted to confirm Sandra Day O'Connor 
as the Court's first female Justice. Indeed, this is the 13th Supreme 
Court nomination I have considered during my 30-year tenure in the 
Senate--from Justice O'Connor to Elena Kagan today.
  First, does the nominee have the technical competence and legal 
experience to do the job of a Justice on the U.S. Supreme Court?
  Second, does the nominee have the proper character and temperament to 
serve on the High Court?
  Third, does the nominee's record demonstrate respect for and 
adherence to the principles underlying our legal system--that of equal 
justice under the law?
  For anyone who has read about her life or watched her performance 
during the confirmation hearings held by the Judiciary Committee 
earlier this summer, I believe it is abundantly clear that Elena Kagan 
passes all three of these tests with flying colors.
  On the question of Solicitor General Kagan's competency and 
experience, I think there is little doubt that we are dealing with a 
superbly qualified nominee.
  Since her graduation from Harvard Law School in 1986, Elena Kagan has 
enjoyed an illustrious legal and academic career.
  After her graduation, Solicitor General Kagan had the honor of 
clerking for two extremely distinguished and highly influential Federal 
judges: U.S. Court of Appeals for the District of Columbia circuit 
judge Abner Mikva, with whom I served in the House of Representatives, 
and has been a great friend of mine for many years; and Thurgood 
Marshall, the Nation's first African-American Supreme Court Justice.
  Subsequently, after nearly a decade of legal work in the private 
sector, as

[[Page 15216]]

a professor at the University of Chicago Law School, and as an 
Associate Counsel in the White House under the administration of 
President Clinton, Ms. Kagan returned to her prestigious alma mater, 
serving first as a professor of law and then as dean of the Harvard Law 
School.
  In an auspicious return to public service, Elena Kagan became the 
Federal Government's chief lawyer before the Supreme Court last year 
when she was confirmed by this body as our Nation's 45th Solicitor 
General--a position often referred to, I might add, as the Court's 
``10th Justice'' because of the extensive legal knowledge and close 
working relationship with the Federal bench it requires.
  I realize some of my colleagues have questioned Solicitor General 
Kagan's nomination because of her lack of judicial experience--that 
because Solicitor General Kagan has never been a judge in either a 
State or Federal court she cannot be an effective Supreme Court 
Justice.
  I would, however, gently remind my colleagues that there is 
absolutely no constitutional requirement that a Supreme Court nominee 
have served previously as a judge. In fact, there is no requirement to 
be a lawyer to serve on the Supreme Court of the United States. Since 
our country's founding, well over one-third of the 111 individuals who 
have served on our Nation's highest Court never put on a judge's robe 
before their confirmation.
  Indeed, William Rehnquist, who served as Chief Justice from 1986 
until his death in 2005, had no prior work experience as a judge when 
he was first appointed to the Court by President Nixon in 1971.
  Nor did Justice Robert Jackson, a very close and dear personal friend 
of my father who served with him at the Nuremberg Trials in 1945 and 
1946. Robert Jackson served as U.S. Attorney General under Franklin 
Roosevelt before being appointed to the Supreme Court in 1941.
  I would, therefore, submit to my colleagues that there are other 
important measures of the quality of a Supreme Court nominee besides 
the depth of his or her experience on the bench. Solicitor General 
Kagan's impressive list of career accomplishments and extensive base of 
legal knowledge will, I believe, hopefully put those unfounded doubts 
over her experience to rest.
  Moving on to the two remaining parts of my test, Elena Kagan once 
again proves she would make an excellent addition to our Nation's 
highest Court.
  As to her character, her graceful performance before the Judiciary 
Committee and extensive list of enthusiastic recommendations from 
Democrats, Republicans, and others across the entire spectrum reveal 
her to be a person of the utmost integrity, professionalism, and sound 
judgment. They also reveal, I think, a key aspect of her legal 
philosophy--a deep and abiding respect for the rule of law and our 
Nation's cherished principle of equality under the law.
  As I said previously, Supreme Court Justices are not just judges, 
they are stalwarts of our Nation's democratic values, guardians of the 
idea that the rule of law should always transcend the rule of men. Each 
of the Federal judicial nominees confirmed in this body has the ability 
to shape every facet of the law and, in a larger sense, American 
society in general. As a result, it is absolutely critical, in my view, 
that we have members of the Supreme Court whose first obligation, above 
all else, is to safeguard those guiding constitutional principles that 
form the foundation of our democratic system of government and to fight 
for the principle of equal justice under law.
  I firmly believe that, when confirmed, Solicitor General Kagan will 
hew closely to those critically important values and work to ensure 
they are protected.
  Once again, I wish to thank Chairman Leahy, our colleague Senator 
Sessions, the ranking minority member, and the members of the Judiciary 
Committee, who I think gave her a very fair, competent, and thorough 
hearing during the nomination process. I also wish to commend Majority 
Leader Reid for his hard work during this process. I urge my colleagues 
to join those of us who believe this is a quality nominee who will 
serve our country well as an Associate Justice of the United States 
Supreme Court.
  Mr. President, I thank my colleagues on the other side for giving me 
a few minutes to express my views on this issue.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SESSIONS. Mr. President, I ask unanimous consent to participate 
in a colloquy with a number of my Senate colleagues.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, we wish to enter into a discussion this 
afternoon about a very critical issue in this confirmation process, and 
that is the second amendment and the right to keep and bear arms as 
provided for in our Constitution; the threat that now exists to that 
right that is plainly stated in the Constitution, and why we think it 
is worthy of serious consideration.
  I will say that most Americans are totally unaware, perhaps, that the 
second amendment and the power of the second amendment hangs by a mere 
thread. Two five-to-four decisions recently have affirmed the second 
amendment, but had that vote been different--one Justice voting a 
different way--the second amendment would not apply to the District of 
Columbia. It would not be considered a right that would apply even to a 
Federal Government entity such as the District of Columbia as a result 
of the Heller case.
  A more recent case in Chicago, McDonald v. the City of Chicago, dealt 
with whether the second amendment actually applies to the States and 
does it only apply to the Federal Government. That was a big deal. If 
it does not apply to the States, then any State in any city--and many 
cities are perfectly willing to do this--would have the power to ban 
firearms entirely, even though the Constitution plainly says you have 
the right to keep and bear arms. This was the effect of that decision.
  I see my colleague Senator Wicker from Mississippi here. I wish to 
ask him if he would share with us: Does he believe Ms. Kagan's record 
would provide us any insight into her views on the second amendment? 
Because she would be one of the votes that would be critical as we go 
forward in the future as to whether that amendment still has power and 
force.
  Mr. WICKER. I thank the ranking member for that question. I would 
answer: Yes, indeed, her record, taken together with her committee 
testimony, tells us a lot about Ms. Kagan's insight and feelings about 
the second amendment.
  Let me agree with my colleague from Connecticut, however, and say I 
don't believe it is necessary for someone to have judicial experience 
to be an effective member of the Supreme Court. Clearly that is not 
called for in the Constitution. However, in a situation such as this, 
where the nominee has never written a judicial opinion of her own, 
where she has hardly any experience at all in the courtroom, I do think 
it is appropriate--and actually necessary--for us to examine her life 
experience and see what insights we can gain on her views on the second 
amendment.
  I would also say this: The debate is drawing to a close. The issue is 
probably not in doubt, but I think we owe it to the Record, we owe it 
to our constituents, we owe it to the American people to outline our 
concerns with regard to the second amendment to the Constitution, to 
the second article in the Bill of Rights. So I ask my colleagues to 
indulge me by going through some of the life experiences this nominee 
has.
  Ms. Kagan began her law career clerking for a very antigun judge, 
Abner Mikva, who later brought Ms. Kagan to the White House to serve as 
his deputy. Judge Mikva once likened the National Rifle Association to 
``a street crime lobby.''
  Next, Ms. Kagan's own hostility to the second amendment rights became 
evident during her time as a law clerk

[[Page 15217]]

for Justice Thurgood Marshall where as a clerk she wrote that she was 
``not sympathetic'' to the argument that the DC handgun ban violated an 
individual's second amendment rights. This is disappointing and 
troubling. In this memo she didn't cite text, precedent, or analyze the 
law or look to the Constitution. Ms. Kagan inserted her personal 
beliefs and said: I am not sympathetic to this individual right 
argument.
  The case that comment involved was Lee Sandidge. A business owner was 
arrested and convicted in the District of Columbia for possessing 
ammunition and an unregistered pistol without a license. The law 
provided up to 10 years in jail for this offense. Mr. Sandidge's second 
amendment claim--the one that Ms. Kagan was not sympathetic toward--
challenged the very same DC total gun ban that was struck down later by 
the Supreme Court in the Heller decision. Ms. Kagan's lack of sympathy 
for Sandidge's claim demonstrates she failed to recognize that we have 
an individual right as citizens to bear arms. I am very pleased that 
the Supreme Court has now recognized this on two occasions, in Heller 
as well as this year, in 2010, in McDonald.
  Then Ms. Kagan embarked on what can only be described as a quest 
against gun ownership and second amendment rights during her years in 
the Clinton White House. She worked extensively on gun issues during 
President Clinton's administration which was well known for such gun 
control efforts. The record leaves no doubt that Ms. Kagan was a key 
player in shaping Clinton White House restrictive gun policies. During 
those years, she coauthored policy memos that advocated increased 
restrictions on lawful gun owners, 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 be shot only by 
authorized adults.'' According to the records of the Clinton 
Presidential Library, Ms. Kagan also drafted an Executive Order 
restricting the importation of certain semiautomatic rifles that were 
not covered by statute. In other words, she authored an Executive Order 
that went beyond the statute in her quest against gun ownership.
  At the time of the import ban, a senior staffer who worked in the 
Clinton domestic policy shop that was run by Ms. Kagan, described the 
administration's plan as follows: ``We are taking the law and bending 
it as far as it can to capture a whole new class of guns.'' This was 
the office our nominee ran during that administration.
  In addition, Ms. Kagan appears to have been in charge of the Domestic 
Policy Council's effort to respond to the Supreme Court's 1997 ruling 
in Printz v. the United States. The Printz case struck down parts of 
the 1994 Brady handgun law on tenth amendment grounds. According to the 
Clinton Library, even after the Supreme Court had ruled, the Clinton 
administration, with Ms. Kagan involved, worked to preserve 
unconstitutional provisions considered in many legislative and 
executive branch responses to the Court's decision.
  I would reiterate what my friend from Alabama has said. The right of 
every American--the individual right we have to keep and bear arms 
under the second amendment to the Constitution--hangs by a single vote, 
and I am concerned that personal sympathies and a strong record of 
opposition to the second amendment would influence the way this person 
would act as a judge.
  But there is one other thing, and I wish to ask my friend from Nevada 
about this. During her testimony before the Judiciary Committee, Ms. 
Kagan stated she had never had an occasion to look at the history on 
which Heller is based, and, therefore, she could not say whether she 
believed there is a preexisting individual, fundamental right to keep 
and bear arms.
  Here is a talented and intelligent and articulate and brilliant law 
student and law professor and staffer who worked extensively on the 
issue of second amendment rights for years, and she taught 
constitutional law at one of the most prestigious institutions in this 
country, yet she stated in her testimony that she had never had 
occasion to look at the history on which this was based and, therefore, 
she could not say whether there was a fundamental right to keep and 
bear arms. I think her credibility was quite damaged by that statement.
  I ask my friend Senator Ensign whether he was surprised when Ms. 
Kagan made that statement based on her extensive experience and 
interaction involving this issue?
  Mr. ENSIGN. As a matter of fact, I was surprised. I think she did a 
real disservice to her prior employers, Justice Marshall, President 
Clinton, by not studying the history of the second amendment before she 
provided them with legal advice. I also think she did a disservice to 
her students, one that a professor of constitutional law should 
understand.
  Ms. Kagan confirmed the importance of studying founding documents 
when interpreting second amendment rights when she said during her 
Solicitor General hearing:

       The individual rights view and the collective rights view 
     present cogent and sometimes powerful arguments. And I have 
     come away thinking that immersion in the primary sources, 
     which I have never attempted, would be necessary to choose 
     between them with any degree of confidence.

  That is what she said. She confirmed this when I met with her as 
well. Yet the choice between the individual and collective rights view 
was crucial to her work for Justice Marshall in the Sandidge case and 
was certainly important to her work during the Clinton administration.
  Mr. THUNE. Would the Senator from Nevada yield for a question on 
that?
  Mr. ENSIGN. Yes.
  Mr. THUNE. I heard my colleague say--and I would be interested in 
having him confirm--didn't Ms. Kagan teach constitutional law and would 
it not have been appropriate at that time for her to have looked at the 
Founding Fathers' intent on the second amendment?
  Mr. ENSIGN. As a matter of fact, she did teach constitutional law. I 
suspect that in the course of her career, she came to understand where 
the Founders included these words in the second amendment in the Bill 
of Rights:

       A well regulated Militia, being necessary to the security 
     of a free State, the right of the people to keep and bear 
     Arms, shall not be infringed.

  I don't think there was a lack of time or certainly a lack of ability 
to find this source material, but I suspect it may be more of her 
unwillingness to accept and ultimately admit that the Constitution and 
the second amendment run contrary to her political beliefs. I find this 
extremely troubling.
  I also think it shows this nominee's tendency to rely on her own 
personal beliefs and to read these into her decisions instead of the 
intent of the Framers of the Constitution.
  Mr. THUNE. Mr. President, I say to my friend from Nevada, it is 
troubling--very troubling, and maybe even telling--that the President 
would ask us to confirm an individual who admittedly has not reviewed 
the justification for the second amendment in the Bill of Rights.
  Mr. ENSIGN. I think my friend from South Dakota makes an excellent 
observation. This admission of her failure to study the history 
surrounding the second amendment is also in stark contrast to her 
emphasis on the importance of students studying international law at 
Harvard Law School.
  When Solicitor General Kagan became dean of the Harvard Law School, 
she spearheaded a sweeping overhaul of the academic curriculum to 
require law students to take an international and comparative law 
course during their first year.
  When asked, ``What specific subjects or legal trends would you like 
[Harvard] to reflect?'' she 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.

  She also said:

       Our goal, then, has been to . . . better equip graduates to 
     be proactive and creative problem solvers . . . to work with 
     a global

[[Page 15218]]

     perspective, whether the particular problem involves a local 
     contract dispute, or an international treaty.

  Thanks to Dean Kagan, international law is a required course at 
Harvard Law School for first-year law students. However, constitutional 
law--U.S. constitutional law--is not only not a first-year 
requirement--in fact, somebody graduating from Harvard Law School can 
graduate without ever taking U.S. constitutional law.
  Mr. SESSIONS. If the Senator will yield, this is a troubling thing. 
Justice Scalia has been a fierce critic of this, pointing out: What 
country do you pick? Do judges get to pick their own?
  It seems to me, from what the Senator said, it is clear that the 
President's nominee to our highest Court in the United States has felt 
that the world of international law is more important than studying our 
own Constitution.
  Mr. ENSIGN. That is the way it appears to me. This is another example 
of where her personal beliefs come in to affect the way she is going to 
be as a judicial activist.
  Mr. SESSIONS. I agree. I think we must study what our Constitution 
says, what the people who wrote it meant, and what rights the people 
retained for themselves when they created it and gave certain limited 
rights to the Federal Government. I do believe the history of the 
second amendment is important. What is the history surrounding the 
founding of our country and the drafting of the second amendment?
  Mr. ENSIGN. I am glad the Senator from Alabama asked that critical 
question. I think it is so important for Americans, people in this 
body, but especially our Supreme Court Justices, to understand.
  We have to remember that the founding generation had just finished 
fighting the Revolution against a tyrannical government. They knew the 
true value of having an armed citizen population.
  Thomas Paine wrote in ``Thoughts on Defensive War'' in 1775:

       Arms discourage and keep the invader and plunderer in awe, 
     and preserve order in the world, as well as property. . . . 
     Horrid mischief would ensue were the law-abiding deprived of 
     the use of them.

  Thomas Jefferson once said in a 1787 letter to William Smith:

       And what country can preserve its liberties, if its rulers 
     are not warned from time to time that this people preserve 
     the spirit of resistance? Let them take arms. . . .

  Patrick Henry said:

       Are we at last brought to such an humiliating and debasing 
     degradation that we cannot be trusted with arms for our own 
     defense? Where is the difference between having our arms 
     under our own possession and under our own direction, and 
     having them under the management of Congress? If our defense 
     be the real object of having those arms, in whose hands can 
     they be trusted with more propriety, or equal safety to us, 
     as in our own hands?

  In fact, if you only take a cursory look at the 20th century, every 
single government that has perpetrated genocide has first disarmed its 
citizens. It is my understanding that every known dictator who has come 
to power has followed this course.
  Mr. SESSIONS. Well, did our Founding Fathers actually know this? What 
was their intent with regard to preserving the right to keep and bear 
arms when this language went into the Constitution?
  Mr. ENSIGN. I know that our Founders certainly looked at writings of 
prominent philosophers when debating the importance of the right to 
keep and bear arms.
  William Blackstone, whom the Supreme Court has called the 
``preeminent authority on English law for the founding generation,'' 
cited the right to keep and bear arms as ``one of the fundamental 
rights of Englishmen,'' calling it ``the natural right of resistance 
and self-preservation--the right of having and using arms for self-
preservation and defense.''
  Judge St. George Tucker, who wrote the first commentary on the 
Constitution in 1803, describes the second amendment as ``the true 
palladium of liberty.''
  He continued:

       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.

  Judge Tucker also said:

       If, for example, a law passed by congress, prohibiting the 
     free exercise of religion . . . or abridging the freedom of 
     speech, or of the press; or the right of the people to 
     assemble peaceably, or to keep and bear arms; it would, in 
     any of these cases be the province of the judiciary to 
     pronounce whether any such act were constitutional. . . . The 
     judiciary, therefore, is the department of the government to 
     whom the protection of the rights of the individual is by the 
     constitution especially, confided, interposing its shield 
     between him and the sword of usurped authority, the darts of 
     oppression, and the safety of faction and violence.

  I would like to ask my colleague from Mississippi, what did Ms. Kagan 
say about this natural right of self-defense?
  Mr. WICKER. I simply look to her own testimony. I think it is 
troubling--particularly for a law professor and somebody who dealt with 
the issue for decades--when asked at her hearing whether she personally 
believes there was a right to self-defense that existed before the 
Constitution, she said she ``didn't have a view of what are natural 
independent of the Constitution.''
  Maybe Solicitor General Kagan was tired by that time. Maybe she had 
been told by her handlers--the people at the Department of Justice--
that it is best to simply not answer that. But I say to my colleagues, 
we are endowed by our Creator with certain inalienable rights. We don't 
get them from the Constitution. Those rights are there. Certain rights 
are enumerated, including the second amendment rights, in the 
Constitution. For a Justice of the Supreme Court not to understand that 
causes me problems, and it causes me to think that she just doesn't 
have a very well-founded view of the second amendment.
  Mr. ENSIGN. Well, I think her statement was shocking. It also proves 
she doesn't believe the second amendment codifies the preexisting 
natural right to self-defense.
  Her statement is in stark contrast with the belief of our Founders, 
who fervently believed that the right to keep and bear arms was a 
natural right. Our Founders discussed natural rights in one of the 
founding documents, the Declaration of Independence:

       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.

  Yet Ms. Kagan doesn't ``have a view of what are natural rights 
independent of the Constitution.'' The failure to recognize the natural 
right to self-defense as articulated by our Founders and expressed in 
the Bill of Rights, I believe, is deeply disturbing.
  The Constitution doesn't create these inalienable rights, as the 
Senator from Mississippi said. It recognizes and protects these rights 
that are considered bestowed upon us by our Creator.
  Mr. WICKER. The Senator is correct. The phrase ``a right of the 
people'' is used two other times in the Constitution and the Bill of 
Rights--in the first amendment's assembly and petition clause, the 
fourth amendment's search and seizure clause, and a very similar phrase 
is used in the ninth amendment, where the Founders stated that ``the 
enumeration in the Constitution, of certain rights, shall not be 
construed to deny or disparage others retained by the people.''
  In all three instances, the Framers were referring to individual 
rights and not to collective rights. Nowhere in the Constitution does a 
``right'' attributed to ``the people'' refer to anything but an 
individual right. It is the same with the second amendment.
  This has been affirmed in the Heller case. Judge Sotomayor, when 
testifying before us, said she thought that was settled law. The 
decision this year, in which she dissented, makes me wonder about that, 
and it gives me grave concern, with a 5-to-4 Court, about what might 
happen to precedent and what I believe now is settled law.
  Let me ask the ranking member, during Ms. Kagan's hearing, she was 
questioned about her statement that she

[[Page 15219]]

believes precedent trumps original intent. What does this mean with 
regard to the second amendment rights, based on the pre-Heller 
precedent?
  Mr. SESSIONS. It is a troubling statement. I think, clearly, it 
allows her to justify voting--if confirmed to the Supreme Court--to 
eviscerate the second amendment. There are some earlier cases before 
the 14th amendment was even passed, or before the first 10 amendments, 
the Bill of Rights, were applied to the States in any systematic way 
that you could rely on as precedent, which could indeed trump, in her 
words, the original intent of the Constitution.
  What did the people ratify? They ratified the Constitution that, in 
fact, just before the Founders signed it, they said ``we do ordain and 
establish this Constitution for the United States''--not some other 
judicial opinion 100 years later.
  I think it raises troubling questions about where she stands on that. 
In the light of Heller and McDonald, which were razor-thin 5-to-4 
decisions, made within the last 2\1/2\ years, we have to acknowledge 
that the Supreme Court is not, with clarity, committed to the plain 
application of the second amendment.
  Mr. THUNE. If I might ask the Senator from Alabama this--because he 
is the ranking member on the Judiciary Committee. I know he has dealt 
with numerous nominees to the Supreme Court in the past, as well as 
probably hundreds of other judicial nominees. Does the Senator recall 
how often those nominees had a record on second amendment rights?
  Mr. SESSIONS. Well, most nominees have not had a record on it, but it 
is interesting, and perhaps noteworthy, that President Obama, who 
himself has not been a strong supporter of the second amendment rights, 
and many of his supporters and Cabinet members are openly hostile to 
it, the two nominees for the Supreme Court he has submitted, Justice 
Sotomayor and Kagan, have had records that indicate a hostility to it. 
Even though Judge Sotomayor, in her testimony, indicated she considered 
this settled law--the Heller decision--her decision less than a year 
later in the Chicago McDonald case, on a similar but somewhat different 
issue, was not consistent with the belief that the Supreme Court had 
settled the question in Heller. So this was a troubling thing. I think 
the Attorney General of the United States, Eric Holder, has argued very 
vociferously to restrict gun rights.
  This is the top law enforcement officer in the country. I do believe 
this is a matter of some concern, in fact, that we may be moving into a 
period in which the government, the big city in Washington, the elites 
who control this, who come out of an environment where they are not 
comfortable with guns, are oblivious and insensitive to the right that 
I believe was critical to our Founders in ratifying the Constitution. 
They wanted to know that they had a right to keep and bear arms, and it 
was important to them that the right was in the Constitution.
  I ask Senator Thune, have any of the outside groups that are 
concerned about these issues spoken out about this nomination?
  Mr. THUNE. They have. I simply say to my colleague from Alabama, in 
his remarks he noted the pattern we are starting to see that exists 
with regard to--the Senator from Alabama mentioned the Attorney General 
of this administration and their nominees to the Supreme Court. What 
that has done is galvanized those at the grassroots level who are very 
concerned about what they see happening and how it might threaten and 
put in danger the second amendment right that many of them have enjoyed 
and believe is something that ought to be protected in the future--it 
ought to be protected by the Supreme Court, it ought to be protected by 
the Congress, it ought to be protected by the President of the United 
States.
  We see some of these grassroots people who are concerned about this 
issue give voice to their concerns through organizations such as the 
NRA, for example, and Gun Owners of America. I wish to point out, if I 
may, that both of these organizations have written letters in 
opposition to Ms. Kagan's nomination.
  I ask unanimous consent to have printed in the Record these letters.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                        National Rifle Association


                                                   of America,

                                        Fairfax, VA, July 1, 2010.
     Hon. Patrick Leahy,
     Chairman, Senate Committee on the Judiciary, Dirksen Senate 
         Office Building, Washington, DC.
     Hon. Jeff Sessions,
     Ranking Member, Senate Committee on the Judiciary, Dirksen 
         Senate Office Building, Washington, DC.
       Dear Chairman Leahy and Ranking Member Sessions: We are 
     writing to announce the National Rifle Association's position 
     on the confirmation of Solicitor General Elena Kagan as 
     Associate Justice of the United States Supreme Court.
       Other than declaring war, neither house of Congress has a 
     more solemn responsibility than the Senate's role in 
     confirming justices to the U.S. Supreme Court. As the Senate 
     considers the nomination of Solicitor General Kagan, 
     Americans have been watching to see whether this nominee--if 
     confirmed--would respect the Second Amendment or side with 
     those who have declared war on the rights of America's 80 
     million gun owners.
       During confirmation hearings, judicial nominees make 
     carefully crafted statements regarding issues with which they 
     do not personally agree. They often speak in terms of 
     ``settled law'' or ``I understand the right''. When those 
     statements are contradicted by an entire body of work over a 
     nominee's career, however, it would be foolhardy to simply 
     take them at face value. In Ms. Kagan's own words, ``you can 
     look to my whole life as to what kind of justice I would 
     be.'' We agree.
       As she has no judicial record on which we can rely, we have 
     only her political record to review. And throughout her 
     political career, she has repeatedly demonstrated a clear 
     hostility to the fundamental, individual right to keep and 
     bear arms guaranteed under the U.S. Constitution.
       As a clerk for Justice Thurgood Marshall, Ms. Kagan said 
     she was ``not sympathetic'' to a challenge to Washington, 
     D.C.'s ban on handguns and draconian registration 
     requirements. As domestic policy advisor in the Clinton White 
     House, a colleague described her as ``immersed'' in President 
     Clinton's gun control policy efforts. For example, she was 
     involved in an effort to ban more than 50 types of commonly-
     owned semi-automatic firearms--an effort that was described 
     as: ``taking the law and bending it as far as we can to 
     capture a whole new class of guns.'' And as U.S. Solicitor 
     General, she chose not to file a brief last year in the 
     landmark case McDonald v. Chicago, thus taking the position 
     that incorporating the Second Amendment and applying it to 
     the States was of no interest to the Obama Administration or 
     the federal government. These are not the positions of a 
     person who supports the Second Amendment.
       During her confirmation hearings last year, Justice Sonia 
     Sotomayor repeatedly stated that the Supreme Court's historic 
     Heller decision was ``settled law''. Even further, in 
     response to a question from Chairman Leahy, she said ``I 
     understand the individual right fully that the Supreme Court 
     recognized in Heller.'' Yet last Monday in McDonald, she 
     joined a dissenting opinion which stated: ``I can find 
     nothing in the Second Amendment's text, history, or 
     underlying rationale that could warrant characterizing it as 
     `fundamental' insofar as it seeks to protect the keeping and 
     bearing of arms for private self-defense purposes''.
       We would also note that both Heller and McDonald were 5-4 
     decisions. The fact that four justices would effectively 
     write the Second Amendment out of the Constitution is 
     completely unacceptable. Ms. Kagan has repeatedly declined to 
     say whether she agrees with the dissenting views of justices 
     Stevens, Breyer, Ginsburg and Sotomayor, which leaves 
     unanswered the very serious questions of whether she would 
     vote to overturn Heller and McDonald or narrow their holdings 
     to a practical nullity.
       This nation was founded on a set of fundamental freedoms. 
     Our Constitution does not give us those freedoms--it 
     guarantees and protects them. The right to defend ourselves 
     and our loved ones is one of those. The fundamental, 
     individual right to keep and bear arms is another. These 
     truths are what define us as Americans.
       Any individual who does not believe that the Second 
     Amendment guarantees a fundamental right and who does not 
     respect our God-given right of self-defense should not serve 
     on any court, much less receive a lifetime appointment to the 
     highest court in the land. Justice Sotomayor's blatant 
     reversal on this critical issue requires that we look beyond 
     statements made during confirmation hearings and examine a 
     nominee's entire body of work. Unfortunately, Ms. Kagan's 
     record on the Second Amendment gives us no confidence that if 
     confirmed to the Court, she will faithfully defend the 
     fundamental, individual right to keep and bear arms of law-
     abiding Americans.

[[Page 15220]]

       For these reasons, the National Rifle Association has no 
     choice but to oppose the confirmation of Solicitor General 
     Elena Kagan to the U.S. Supreme Court. Given the importance 
     of this issue, this vote will be considered in NRA's future 
     candidate evaluations.
       Thank you for your attention to our concerns. Should you 
     have any questions or wish to discuss further, please do not 
     hesitate to call on us personally.
           Sincerely,
     Wayne LaPierre,
       Executive Vice President, NRA.
     Chris Cox,
       Executive Director, NRA-ILA.
                                  ____



                                        Gun Owners of America,

                                  Springfield, VA, August 5, 2010.
       Dear Senator: You will soon vote on the confirmation of 
     Elena Kagan to the U.S. Supreme Court.
       During her confirmation hearings, Kagan ducked and dodged 
     questions about the Second Amendment and refused to declare 
     whether she believes the Second Amendment protects an 
     individual right.
       Kagan insisted that the Supreme Court decisions in Heller 
     and McDonald should be treated as precedent and ``settled 
     law,'' but this in no way precludes her from ruling that 
     almost any gun law--including gun owner registration, 
     purchasing limits, waiting periods, private sale background 
     checks, and more--is consistent with the Constitution.
       Recall the confirmation hearings of Sonia Sotomayor, the 
     newest Supreme Court Justice. Sotomayor assured the Senate, 
     and the American people, that she accepted the Court's ruling 
     in Heller that the Second Amendment protects an individual 
     right.
       Yet, in the McDonald case, Sotomayor joined the dissent in 
     writing that ``I can find nothing in the Second Amendment's 
     text, history, or underlying rationale that could warrant 
     characterizing it as `fundamental' insofar as it seeks to 
     protect the keeping and bearing of arms for private self-
     defense purposes.''
       Ms. Kagan has made the same promises to the Senate, but the 
     available evidence portrays her as a forceful advocate of 
     restrictive gun laws and as a person driven by political 
     considerations rather than the rule of law.
       While Ms. Kagan does not have a record of judicial 
     opinions, her views on the Second Amendment are no mystery. 
     Some considerations that have come to light since her 
     nomination include:
       While serving in the Clinton administration, Ms. Kagan 
     drafted an executive order to ban certain semi-automatic 
     firearms;
       Ms. Kagan suggested that the President could issue another 
     executive order--bypassing Congress--to ban gun purchases 
     without prior approval from the federal government;
       As a law clerk, Elena Kagan advised against the Supreme 
     Court considering Sandidge v. United States in a case that 
     questioned the constitutionality of the D.C. gun ban, writing 
     that she was ``not sympathetic'' to the gun owner's Second 
     Amendment claims; and,
       Kagan was part of the Clinton team that pushed the firearms 
     industry to include gun locks with all gun purchases and was 
     in the Clinton administration when the President pushed 
     legislation that would close down gun shows.
       Elena Kagan poses such a threat to the Second Amendment 
     that it would be better for the Supreme Court to begin its 
     2010-2011 session with only eight Justices, than for this 
     radical nominee to be confirmed.
       On behalf of over 300,000 members of Gun Owners of America, 
     I urge you to ``NO'' on this nominee's confirmation.
           Sincerely,
                                                     John Velleco,
                                      Director of Federal Affairs.

  Mr. THUNE. Mr. President, I continue by saying that after reviewing 
Ms. Kagan's record of testimony at the confirmation hearing, Gun Owners 
of America concluded:

       . . . the available evidence portrays her as a forceful 
     advocate of restrictive gun laws and as a person driven by 
     political considerations rather than the rule of law.

  The NRA went on to write:

        . . . Ms. Kagan's record on the Second Amendment gives us 
     no confidence that if confirmed to the Court, she will 
     faithfully defend the fundamental, individual right to keep 
     and bear arms of law-abiding Americans.
       For these reasons, the National Rifle Association has no 
     choice but to oppose the confirmation of Solicitor General 
     Elena Kagan to the U.S. Supreme Court. Given the importance 
     of this issue, this vote will be considered in the NRA's 
     future candidate evaluations.

  Yes, the answer to the question of the Senator from Alabama is both 
the NRA and Gun Owners of America have opposed not only this nomination 
but also Justice Sotomayor's nomination.
  Mr. President, I ask unanimous consent to have printed in the Record 
the NRA's letter in opposition to the Sotomayor nomination.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                        National Rifle Association


                                                   of America,

                                       Fairfax, VA, July 23, 2009.
     Hon. Harry Reid,
     Majority Leader, U.S. Senate, The Capitol, Washington, DC.
     Hon. Mitch McConnell,
     Republican Leader, U.S. Senate The Capitol, Washington, DC.
       Dear Leader Reid and Leader McConnell: We are writing to 
     express the National Rifle Association's opposition to the 
     confirmation of Judge Sonia Sotomayor as Associate Justice of 
     the United States Supreme Court.
       From the outset, the National Rifle Association respected 
     the confirmation process and hoped for mainstream answers to 
     bedrock questions. Unfortunately, Judge Sotomayor's judicial 
     record and testimony during the Senate Judiciary Committee 
     hearings clearly demonstrate a hostile view of the Second 
     Amendment and the fundamental right of self-defense 
     guaranteed under the U.S. Constitution.
       We are particularly dismayed about the U.S. Court of 
     Appeals for the Second Circuit's recent decision in the case 
     of Maloney v. Cuomo, in which Judge Sotomayor refused to 
     follow Supreme Court precedent by conducting a proper 
     incorporation analysis of the Second Amendment, concluding 
     instead that the right to keep and bear arms does not protect 
     all law-abiding Americans living in every corner of this 
     nation.
       In addition, Judge Sotomayor was a member of the panel in 
     the case of United States v. Sanchez-Villar, where (in a 
     summary opinion) the Second Circuit dismissed a Second 
     Amendment challenge to New York State's pistol licensing law. 
     That panel, in a terse footnote, cited a previous Second 
     Circuit case to claim, ``the right to possess a gun is 
     clearly not a fundamental right.''
       It is only by ignoring history that any judge can say that 
     the Second Amendment is not a fundamental right and does not 
     apply to the States. The one part of the Bill of Rights that 
     Congress clearly intended to apply to all Americans in 
     passing the Fourteenth Amendment was the Second Amendment. 
     History and congressional debate are clear on this point.
       We believe any individual who does not agree that the 
     Second Amendment guarantees a fundamental right and who does 
     not respect our God-given right of self-defense should not 
     serve on any court, much less the highest court in the land. 
     Given the importance of this issue, the vote on Judge 
     Sotomayor's confirmation will be considered in NRA's future 
     candidate evaluations.
       Thank you for your attention to our concerns. Should you 
     have any questions or wish to discuss further, please do not 
     hesitate to call on us personally.
           Sincerely,
     Wayne LaPierre,
       Executive Vice President, NRA.
     Chris Cox,
       Executive Director, NRA-ILA.

  Mr. THUNE. Mr. President, the NRA wrote in that case:

       . . . Judge Sotomayor's judicial record and testimony 
     during the Senate Judiciary Committee hearings clearly 
     demonstrate a hostile view of the Second Amendment and the 
     fundamental right of self-defense guaranteed under the U.S. 
     Constitution.

  Mr. ENSIGN. Mr. President, I ask my friend from South Dakota, why is 
it so significant that both of these groups have opposed her 
nomination?
  Mr. THUNE. I say to my colleague from Nevada, it comes down to their 
horrible record on gun rights. It made it impossible for these two 
organizations to conclude that they would be impartial constitutional 
judges on this issue even though they tried to convince Senators 
otherwise during their confirmation hearings.
  These groups had their concerns about Justice Sotomayor validated on 
June 30, 2010, when she ruled again that the second amendment is not a 
fundamental right. Justice Sotomayor assured Senators during her 
hearing that she believed the second amendment guaranteed an individual 
right to keep and bear arms. But then in her first ruling on the second 
amendment as a Supreme Court Justice, she joined the minority opinion 
in McDonald v. Chicago and failed to protect this individual right, as 
confirmed by the majority of the Court, for citizens living in the 50 
States.
  Specifically, at Justice Sotomayor's hearing, she said that she 
``understood the individual right fully that the Supreme Court 
recognized in Heller'' and ``knew how important the right to bear arms 
is to many Americans,'' and that she did not consider the right 
``unfundamental.''
  This is in stark contrast to the opinion she signed onto in McDonald 
that I

[[Page 15221]]

said--this is a quote from the McDonald opinion:

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

  I know that many in this body, especially those who supported her 
confirmation, were surprised by what is seemingly a 180-degree turn.
  While I had hoped we could trust her word, I was concerned that her 
record did not fit her statements at the hearing. I had concerns that 
her true feelings were much more hostile toward the second amendment 
right than what she was letting on.
  Specifically, I had concerns with two different cases she decided as 
a circuit court judge, including one after the Supreme Court already 
recognized the second amendment was an individual right, where she held 
in that case that the second amendment was ``clearly not a fundamental 
right'' and did not apply to the States.
  There were some Senators at the time who were not as concerned by 
this record as I was and some of the others of us in the Chamber were 
and went so far as to say--this is a quote from one of our colleagues:

       I do not see how any fair observer could regard her 
     testimony as hostile to the second amendment personal right 
     to bear arms, a right she has embraced and recognized.

  That is something said by one of our colleagues in the Senate during 
the Sotomayor confirmation.
  While what Justice Sotomayor said during the hearing certainly gave 
the impression that she believed in the individual right to keep and 
bear arms, her prehearing record demonstrated her true beliefs.
  I am here today to urge those Members who proclaim to strongly 
support the second amendment not to be fooled a second time. Ms. Kagan 
was asked about the second amendment on a number of occasions at her 
hearing, and each time her response was merely a mimic of Justice 
Sotomayor's statements on the second amendment at her hearing.
  Ms. Kagan would go no further than to acknowledge that the important 
Supreme Court decisions in Heller and McDonald are ``precedent'' and 
``settled law entitled to all the weight the precedent usually gets.''
  I believe there is no question that Ms. Kagan will follow in the 
footsteps of Justice Sotomayor and revert to the beliefs demonstrated 
by her anti-second amendment record rather than her posturing during 
her confirmation hearing.
  That is the reason the NRA and other groups that treasure the 
fundamental right to keep and bear arms, such as Gun Owners of America, 
oppose her nomination, just as they did Justice Sotomayor's.
  The only question that remains for us in the Senate is whether pro-
second amendment Senators who voted for Justice Sotomayor have learned 
their lesson and will vote against the Kagan nomination.
  I say to my colleagues from Nevada and Alabama, as the old saying 
goes: Fool me once, shame on you; fool me twice, shame on me. For the 
sake of gun owners across the country, I hope they will not be fooled 
again.
  I say to my colleagues from Nevada and Alabama, with all the 
unanswered questions that remain after the Heller and McDonald cases, 
are there not lots of reasons why those grassroots people across this 
country--those gun owners, those people who care profoundly about the 
right to keep and bear arms--ought to be concerned? For example, what 
is a sensitive place? Who needs to register? There are going to be 
registration laws that are put in place. How is the issue of 
microstamping and the mandates and requirements that might be 
associated with that going to impact this fundamental second amendment 
right?
  Mr. ENSIGN. Mr. President, I ask the ranking member about the 
McDonald case, and maybe he can go into some details about the McDonald 
case and the significance of that when it comes to future decisions.
  Mr. SESSIONS. The McDonald case was a hugely important case. It dealt 
for the first time in recent memory with the question of whether the 
second amendment, which had been held in Heller to apply to the Federal 
Government, whether it passed through the 14th amendment to apply to 
all the States--and cities are creatures of States, so whether it 
applied to cities.
  This is a big deal because it is not generally so much the Federal 
Government that is willing to deny gun rights, but certain States and 
certain cities seem very aggressively willing to deny people's second 
amendment rights.
  The question for the Court was: Is it a fundamental right in the Bill 
of Rights, a stated fundamental right, and if it is fundamental, it 
passes through the 14th amendment and all States must comply with it, 
just as States must comply with the right to free speech and other 
rights in the Constitution.
  By a razor thin 5-to-4 majority, the Supreme Court in McDonald held 
that it is a fundamental right and does apply to the States, and no 
State, therefore, and no city can deny an individual right of an 
American citizen to keep and bear arms. This is a big, important case.
  Justice Sotomayor--who suggested otherwise in her testimony--as 
Senator Thune said, her record suggested she would rule that way, rule 
with the four that it did not apply to the States. It is a big deal.
  Mr. ENSIGN. In the McDonald case, as I understand, there were several 
restrictions put on citizens when it came to their second amendment 
right: paying a $100 processing fee and a $15 fee for each gun 
registered; undergo and pass a firearms safety test which consists of 4 
hours of training and 1 hour target range practice, which, by the way, 
costs about $100 for each one of those activities; undergo and pass a 
vision test, if you do not have an Illinois driver's license; provide 
fingerprints; be at least 21 years of age or 18 years with parents' 
permission; wait 45-120 days for processing; own only one operational 
firearm; and reregister every 3 years.
  I ask the ranking member, why are these restrictions necessary?
  Mr. SESSIONS. The question becomes: Does it impact a fundamental 
right? At some point it does. We decided you cannot put a poll tax on 
people to say you have to pay money for your right to vote. People do 
not have to pay for the right to speak out about advocate beliefs 
because you have a right to free speech.
  I do think these restrictions, as they increase, can reach a point of 
denial of people's individual right to keep and bear arms. We want to 
be sure that a judge not only recognizes it is a constitutional 
individual right but that the judge recognizes that some of these 
restrictions we accept and are legitimate go too far.
  Mr. ENSIGN. I will add, concluding my remarks, that this issue is of 
critical importance. Without the second amendment, the rest of the Bill 
of Rights can go away. That is what our Founders recognized. Our 
colleagues, before they vote on Solicitor General Kagan, need to 
understand that. That is why this colloquy is so important today. We 
have brought out some very important points.
  It was an honor to be with my colleagues to discuss Solicitor General 
Kagan's views on the second amendment and how that potentially could 
impact her decisions in the future.
  Mr. THUNE. Mr. President, I close by saying as well, I think in all 
cases, you have to judge people not by what they say but by what they 
do. Clearly, the record would suggest, as it did with Justice 
Sotomayor, a certain hostility toward the second amendment right. 
Obviously, statements at the Judiciary Committee hearings suggesting an 
openness to this or acknowledging settled law or precedents or all 
those sorts of things were meaningless in regard to the Chicago case 
with regard to Justice Sotomayor.
  If we look at the long history of Ms. Kagan with regard to this 
issue, I think we can conclude where she is going to end up.
  It is a critical issue because these are 5-to-4 decisions. These are 
very narrow decisions that strike at the very heart

[[Page 15222]]

of a fundamental constitutional right that people in this country 
deserve to have their leaders, both elected leaders and people on the 
Court, protect. I am very concerned about where that is headed with 
this nominee.
  I yield to the Senator from Alabama.
  Mr. SESSIONS. I thank my colleagues for this nice and valuable 
discussion. I will say that one of the unjustifiable actions of the 
judicial activist philosophy that is too much afoot in America today is 
their willingness to completely be oblivious to plain constitutional 
rights, things that are flatly stated, and then to create rights that 
do not exist.
  For example, the Constitution gives the right to free press, but we 
had Solicitor General Kagan arguing before the Supreme Court in defense 
of this campaign finance bill that a corporation could be prohibited 
from producing a pamphlet before an election that might be critical of 
a politician. I mean, that is what the first amendment was about. It 
wasn't about pornography or flag burning, for heaven's sake. It was 
about political speech, plainly in the Constitution. Yet we had four 
members of the Supreme Court--a vote in an opinion recently--who said 
the government could ban the pamphlets. Actually, another lawyer for 
the government argued you could ban books.
  The Supreme Court, by a 5-to-4 majority did, in fact, say that you 
could take a man's private drugstore--the government could--and give it 
to another man who had a competing drugstore; in other words, taking 
private property for private use. The Constitution says you can't take 
private property except for public use under condemnation. A plain 
violation, 5-to-4 approved.
  By two 5-to-4 decisions--the narrowest of margins--we had the plain 
constitutional right that Americans have to keep and bear arms hang by 
one vote. We have another example of a judge in California yesterday 
declaring that the Constitution somewhere says a State must declare 
that a union between same-sex couples has to be defined in the same way 
and recognized in the same way as a marriage, even after California had 
a referendum in which millions of Californians voted differently. A 
single judge, with no clear constitutional authority at all--in fact, 
no real constitutional authority--declared that invalid and wiped it 
out.
  So I would suggest that people who are using this court to promote 
their agendas need to be careful. Don't think you can play with the 
first amendment. Don't think you can play with the second amendment. 
Don't think you can play with the constitutional right to have your 
property not taken by the government except for public use. If you can 
start wiping those rights out, what right next will the Court come and 
take? What right next will the central government come and take from 
you?
  So if you love this Constitution and respect it and believe it is a 
great bulwark for freedom, prosperity, and liberty, I suggest there is 
only one way to handle it, Mr. President: enforce it as written whether 
you like it or not.
  I thank the Chair, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, I want to address the nomination of 
Solicitor General Kagan to serve on the U.S. Supreme Court. Earlier 
this week, I discussed my opposition to the nomination, but at that 
time I didn't go into any depth about my concerns with regard to her 
participation in the military recruiting policy that banned the U.S. 
military from the Office of Career Services at Harvard Law School.
  While this incident has been discussed a lot, I think it is very 
important to establish for the record exactly what happened. I believe 
a due respect for the men and women of our military and the gravity of 
this debate demand a full review of the facts behind what Elena Kagan 
did as dean of the Harvard Law School to exclude and stigmatize the 
U.S. military.
  Harvard Law School adopted an antidiscrimination policy in 1979. This 
policy states that any employer that wished to use the Office of Career 
Services at the law school had to sign a statement affirming that it 
does not discriminate on various bases, including sexual orientation. 
The military--not just because of its policy but because of the policy 
of the Congress and the law that we passed--could not sign this 
statement because of the don't ask, don't tell policy adopted during 
the Clinton administration.
  In 1993, when a Democratic Congress and the Clinton administration 
changed the military's outright ban on gays in the military to adopt 
this don't ask, don't tell policy, Harvard took the position that the 
military was still not in compliance with its antidiscrimination 
policy. As a result of Harvard's policy, from 1979 through 2002, the 
U.S. military was barred from recruiting individuals at the Harvard Law 
School's Office of Career Services, where everyone else who was 
recruiting on campus was allowed to conduct interviews and recruit 
potential candidates.
  While this ban on the services of the Office of Career Services was 
in effect, the Harvard Law School Veterans Association essentially took 
the place of the Office of Career Services and established an off-
campus interview forum for law students interested in serving their 
country in the U.S. military. So because they were banned from the 
Office of Career Services, the military had to look for an alternative 
venue or forum provided by the Harvard Law School Veterans Association 
in order to conduct those interviews.
  But then something very important happened. In 1995, Congress enacted 
another law, popularly known as the Solomon Amendment. The Solomon 
Amendment said you cannot receive Federal funds--if you are an 
educational institution--if you, in effect, prohibit military 
recruiting on your campus. In other words, they could have continued 
their policy of discrimination against the military, but they would 
have been denied Federal funds under the plain wording of the Solomon 
Amendment passed in 1995.
  The Secretary of Defense, under the Solomon Amendment, has to make a 
finding that the school is not offering access to military recruiters 
that is ``equal in quality and scope to the access that the school 
provides other employers.'' That was the 1995 law. In 2002, the 
Secretary of Defense of the United States found that Harvard's 
exclusion of military recruiters from the Office of Career Services was 
not ``equal access.''
  In response to this Federal law and the finding by the Secretary of 
Defense, Ms. Kagan's predecessor, Robert Clark, essentially capitulated 
and gave the military access to the Office of Career Services in 2002. 
So Dean Robert Clark, Dean Kagan's predecessor, rather than be denied 
Federal funds to Harvard by violating the Solomon Amendment and denying 
access to military recruiters to the Office of Career Services, decided 
in 2002 to change Harvard's policy. Thus, when Ms. Kagan became dean of 
the law school in the spring of 2003, the military had full access to 
the Office of Career Services to recruit interested candidates for 
military service.
  For a while, Dean Kagan maintained the military's access to the 
Office of Career Services in compliance with the Solomon Amendment. But 
it is clear that Dean Kagan did not like that because she voiced her 
political opposition to the don't ask, don't tell policy--in other 
words, the law enacted by Congress and to which the Department of 
Defense was accountable for enforcing--in an e-mail she sent to all of 
Harvard's law students saying that she ``abhorred'' the ``don't ask, 
don't tell policy'' and she considered it ``a moral injustice of the 
first order.''
  In January 2004, Dean Kagan joined 53 other members of the Harvard 
law faculty in filing a friend of the court brief supporting a 
challenge to the Solomon Amendment in the Third Circuit Court of 
Appeals. So even though she maintained access for a while, inherited 
that policy under her predecessor, in 2004, when a lawsuit was filed to 
challenge the Solomon Amendment, Dean Kagan and other Harvard Law 
School faculty joined in a friend of the court brief to try to strike 
down the Solomon Amendment.

[[Page 15223]]

  In November of 2004, a split panel on the Third Circuit Court of 
Appeals actually held that the Solomon Amendment was reasonably likely 
to be unconstitutional and sent the case back to the district court 
with instructions to issue an injunction halting the Solomon 
Amendment's enforcement.
  Now, this is very important because the Third Circuit is one of our 
circuit courts of appeal in the United States, but it is not the U.S. 
Supreme Court. By that I mean when it makes a decision, its decision 
only applies to the territory or that part of the United States that is 
within the Third Circuit. That is important because Harvard is not in 
the Third Circuit. Harvard is in the First Circuit. So in effect, the 
Third Circuit panel's decision had no legal effect on Harvard Law 
School.
  Nevertheless, the very next day, after the Third Circuit issued its 
decision, Dean Kagan changed the Harvard Law School policy to once 
again bar the military from using the services of the Office of Career 
Services. In other words, she was not compelled to do so by law but 
exercising her discretion as dean, she chose to reinstate this policy 
of barring military recruiters from the Office of Career Services.
  Then, in January of 2005, the Third Circuit issued an order staying 
its enforcement pending a decision by the U.S. Supreme Court. After 
this, of course, the Third Circuit ruling did not even have any effect 
even in the Third Circuit, much less in the jurisdiction in the circuit 
with jurisdiction over Harvard. But even after the order was stayed, 
Ms. Kagan continued the policy of barring military recruiters from the 
Office of Career Services.
  While her policy barring military recruiters from the Office of 
Career Services was in effect, Dean Kagan approached the Harvard Law 
School Veterans Association and asked them to serve as an alternate 
channel for military recruiting at Harvard Law School. In 2005, the law 
school veterans declined, writing:

       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.

  In short, the law school veterans told Dean Kagan that the separate 
access she wanted them to offer the military would not be equal because 
they didn't have the ability to match the resources of the Office of 
Career Services.
  In May 2005, the Supreme Court of the United States then said they 
were going to hear an appeal of the Third Circuit's decision, and they 
granted the writ of certiorari to the Defense Department's appeal of 
that case to review their finding on the Solomon Amendment. Over the 
summer of 2005, the Defense Department notified Dean Kagan that it 
would rescind Harvard's funding--in other words, it would deny Federal 
funding to Harvard pursuant to the Solomon Amendment--if she continued 
to deny the military access to the Office of Career Services.
  Faced with this ultimatum, on September 20, 2005, Dean Kagan finally 
ended her 10-month unlawful denial of access and announced that pending 
the Supreme Court's decision she would lift the ban and give the 
military access to the Office of Career Services. But in the meantime, 
she filed another friend of the court brief, this time in the Supreme 
Court of the United States, arguing the Solomon Amendment should not 
apply to her actions barring the military from the Harvard Law School's 
Office of Career Services.
  Ultimately, the Supreme Court unanimously rejected Dean Kagan's 
position and unanimously upheld the Solomon Amendment.
  To recap: Dean Kagan's ban on military recruiters lasted for 10 
months--from November of 2004 through September of 2005. During that 
entire span of time, the Department of Defense position was always--was 
always--that the ban violated the congressionally passed Solomon 
Amendment. Never in that span of time did the Supreme Court, the First 
Circuit, or any other court with jurisdiction over Harvard adopt Dean 
Kagan's view regarding the scope or enforceability of the Solomon 
Amendment. In that span of time, only a split panel of the Third 
Circuit held that the Solomon Amendment was unenforceable, and for all 
but 2 months of that time, the Third Circuit's order was stayed.
  Despite all of this, Dean Kagan persisted in barring military 
recruiters from the Office of Career Services and insisted that the 
military could obtain separate but equal access to Harvard Law School 
through alternate routes. Dean Kagan held that the Supreme Court's 
position ran afoul of the Solomon Amendment, the findings of the 
Secretary of Defense, and ultimately the legal judgment of the entire 
Supreme Court. I believe these are the undisputed facts of the case.
  So why do Ms. Kagan's actions matter? I would argue that they matter 
for two reasons. First is the message her actions sent about her lack 
of respect for the U.S. military at Harvard Law School during her 
deanship. Ms. Kagan claims she holds the military in the highest 
respect, but I have to ask you, this notion that you are going to 
provide separate but equal access to interviewing services is not one 
that shows respect. It is one that provides an unnecessary and really 
reprehensible stigma on the U.S. military, which had no control over a 
policy passed by Congress under the Solomon Amendment.
  Of course, she did this at a time when hundreds of thousands of young 
men and women deployed to Iraq and Afghanistan were wearing the uniform 
of their country to protect their fellow citizens and the rule of law. 
Dean Kagan's actions in taking every step legally possible to relegate 
the military to what she herself believed was separate but equal status 
placed an unmistakable stigma on the military during a time of war.
  I believe her decision to stigmatize the military is reason enough to 
oppose her nomination to a lifetime seat on the U.S. Supreme Court, but 
her actions as dean are troubling for another reason as well. I believe 
her actions as dean indicate strong evidence that, as a Justice, 
someone sitting in judgment on the U.S. Supreme Court, she would tend 
to advance her political preferences rather than take a traditional 
approach of a judge in following the law.
  Many of our colleagues have pointed out correctly that Ms. Kagan has 
never been a judge. While that is not a requirement to serve on the 
Supreme Court, this lack of judicial experience makes it difficult to 
tell whether Ms. Kagan would adopt a judicial activist philosophy if 
she takes a seat on the Court. Because she has never held the job of a 
judge--we don't have any record to judge her by--we must look to the 
jobs she has held and the actions she has taken to see how she is 
likely to perform her job as a member of the U.S. Supreme Court.
  In the 10 months during which she banned the U.S. military from the 
Harvard Law School campus, I believe Dean Kagan showed a willingness to 
bend the law and facts to advance her own political goals of protesting 
the don't ask, don't tell policy and, as I said, stigmatizing the 
military in the process. Despite the lack of any binding authority, she 
adopted an interpretation of the Solomon Amendment so tenuous that it 
could not garner the vote of a single Justice on the U.S. Supreme 
Court, and she did so for the express purpose of advancing her 
objections to a policy she said she abhorred.
  Bending the law and the facts to reach a preferred result is exactly 
what judicial activists do, and there is a pattern in Ms. Kagan's legal 
career of bending the law and facts to advance her preferred policy 
results. So while Ms. Kagan has never been a judge, she has established 
a disturbing pattern of doing what judicial activists do. Ms. Kagan's 
actions in her previous jobs showed she is very likely not to embrace 
the role of a judge who decides cases based on the Constitution as 
written and the law as passed by Congress that she is responsible for 
enforcing if they are, in fact, constitutional but, rather, she gives 
every indication of someone who believes it is within her role and 
prerogative as a Justice to basically make the law rather than to 
enforce the law as written. No Member of this Chamber should be 
surprised if, for the rest of her life as a Supreme

[[Page 15224]]

Court Justice, Ms. Kagan does not merely follow the law as written but, 
rather, bends the law to advance her progressive political agenda.
  Our Constitution is too precious and the Supreme Court is too 
powerful for us to accept without question a President's nominee to the 
Supreme Court. The Framers of the Constitution recognized the 
importance of this appointment and the power given to a Supreme Court 
Justice, who serves for life without any political accountability to 
the electorate. That is why they gave us the responsibility to give our 
advice and consent.
  The nomination and confirmation of a Supreme Court Justice is really 
a two-step process. First, the President makes his nomination. The 
President can nominate anyone the President wants who meets the 
qualifications of the Constitution. But then it is our responsibility 
to exercise our constitutional duty to provide advice and consent.
  I believe Ms. Kagan has failed to embrace the traditional view of 
judging that I believe all judges must adhere to at the risk of, 
rather, them becoming a lawmaker, which is incompatible with the role 
of a Justice. I believe a judge who assumes a role of being a 
policymaker or a lawmaker is, in essence, a lawbreaker.
  Indeed, Ms. Kagan's career up to this point shows a willingness to 
bend the law and the facts to advance her own beliefs, and I fear this 
trend will continue in an activist tenure on the Supreme Court. For 
these reasons, I oppose her nomination and will vote no.
  Mr. BENNET. Mr. President, I rise in strong support of the 
President's nomination of Solicitor General Elena Kagan to be Associate 
Justice of the U.S. Supreme Court.
  The Senate has no more important responsibility than to advise and 
consent on nominations to our Nation's highest Court. It will be an 
honor on behalf of the people of my State to cast my vote to confirm 
Elena Kagan.
  Ms. Kagan is a distinguished lawyer with a remarkable legal 
background. She brings very diverse experiences to the Court that I 
believe will add to the important perspective of the high Court as it 
reviews cases of critical importance to the American people.
  Throughout her career she has been a legal trailblazer and a role 
model. She will be the fourth woman to serve on the high Court, and for 
the first time in history, three women will be serving on the bench 
when oral arguments are heard this fall. Her nomination marks an 
historic milestone of progress for women in the legal profession and in 
serving as leaders for our Nation.
  A graduate of Harvard Law School, Ms. Kagan began her career as a law 
clerk to former Supreme Court Justice Thurgood Marshall, who like her, 
served as Solicitor General prior to being promoted to the high Court. 
Justice Marshall made history as the first African-American Solicitor 
General at the time and Ms. Kagan has followed suit as the first female 
Solicitor General.
  Following her clerkship, Ms. Kagan worked in the private sector where 
she handled first amendment, commercial and criminal litigation. She 
then served in the highest ranks of academia as a law professor. This 
ultimately led to her becoming dean at the Harvard Law School, one of 
our nation's most prestigious institutions. Her ascension to dean 
marked the first time in Harvard Law School's 186-year history that a 
woman held this position. As dean, Ms. Kagan bridged ideological 
divides among faculty, recruiting professors from across the 
ideological spectrum, managing the largest and most prestigious law 
school in our nation and improving the quality of life for students.
  Prior to becoming dean, Ms. Kagan served in high legal and policy 
positions in the Clinton administration, where she learned the 
operations of the executive and legislative branches of our government, 
which will help the Court better understand how policy judgments are 
made and the effect that the decisions of our government and courts 
have on the lives of everyday Americans.
  Most recently, Ms. Kagan has dutifully served our Nation as the U.S. 
Solicitor General. The Solicitor General is often referred to as the 
10th Justice because of the frequency that he or she appears before the 
Court on behalf of the United States. This experience exposed Ms. Kagan 
to nearly every case that has come before the current Court and she has 
had to weigh all of the same legal considerations as the current 
Justices prior to deciding the position of the U.S. Government. Few 
positions provide better preparation for the high Court.
  While she has not previously served as a judge, though she was 
previously nominated to be one, I see her varied background as an 
asset. We need different life experiences on the Supreme Court. If 
confirmed, Ms. Kagan will be the first nonjudge since former Chief 
Justice William Rehnquist was nominated by former President Richard 
Nixon.
  Her mix of professional experience will help ensure that we do not 
have a Court out of touch with the American people. Ms. Kagan has 
taught the law in the classroom, practiced in the public and private 
sector, worked in the judiciary as a clerk and crafted the policies of 
the executive branch. Everywhere she has worked, Ms. Kagan has 
excelled. Her experience is the kind of experience we should aspire for 
all of our justices to have before serving on the high Court.
  The Supreme Court is too important to not hold our justices to high 
standards of intellect and achievement--a standard Ms. Kagan meets. It 
is our best and brightest who should serve in these important 
positions. We need Justices who respect precedent, hew closely to the 
text of the law and do not pursue an agenda from the bench.
  We do not need activist judges whether they come from the right or 
left. The American people do not want an ideologically driven Supreme 
Court that is pursuing a political agenda. We want a Court that 
respects precedent and helps resolve the legal questions of our time as 
they affect our daily lives.
  I would like to close by thanking outgoing Justice John Paul Stevens 
for his service to our country. Justice Stevens presided on the Court 
during a period of great change and accomplishment for our nation. He 
is a member of the Greatest Generation and is a true patriot for his 
service during World War II. Justice Stevens has been an intellectual 
heavyweight on the bench and provided a voice of reason even while we 
have seen the Court drift so heavily in favor of the most powerful 
interests. He has left large shoes to fill and will be missed.
  President Obama has nominated someone who can fill these shoes. 
Because of the breadth and diversity of her experience, Elena Kagan has 
a profound understanding of the law and effect the Supreme Court has on 
the lives of all Americans. She is an intellectual heavyweight in her 
own right and will help the Court bridge the divides of recent years.
  I am proud to commit my vote in favor of this nominee.
  Mr. HARKIN. Mr. President, I am proud to support the confirmation of 
Solicitor General Elena Kagan as the next Associate Justice of the 
United States.
  Solicitor General Kagan is eminently qualified to serve on our 
Nation's highest Court. As a student, she excelled at Princeton, Oxford 
and Harvard Law School. She has stellar legal credentials that have 
been recognized by liberal and conservative lawyers alike. And, 
throughout her career, including as a professor of law, as a key 
advisor to President Clinton, as dean of Harvard Law School, and as 
Solicitor General, she has demonstrated a great mind and intellect.
  Moreover, Solicitor General Kagan will bring important diversity to 
the Court. First, when the Senate confirms her, she will be only the 
fourth woman to serve on the Court; and for the first time in history, 
three women will serve on the Supreme Court together.
  Second, Solicitor General Kagan's experiences as someone who has 
worked in the legislative and executive branches will provide a vital 
perspective that is currently lacking among the Justices. In fact, for 
the first time in history, the current Court is comprised entirely of 
Justices who were

[[Page 15225]]

promoted directly from the lower Federal courts. While judicial 
experience is important, it is also important to recognize that some of 
our most consequential Justices--Louis Brandeis, Felix Frankfurter, 
Earl Warren, Robert Jackson and William Rehnquist, to name just a few--
did not have prior judicial experience. I am glad the President 
recognized how crucial it is to have on the bench Justices with varied 
life experiences.
  Mind you, I am hopeful that next time the President will look to one 
of the many qualified lawyers who did not graduate from Harvard or 
Yale, or one who resides east of the Appalachian Mountains. But 
nominating someone from outside the Federal courts is a refreshing 
change.
  As I evaluate Solicitor General Kagan's qualifications, an additional 
factor is important for me: she clerked and learned from two judges for 
whom I have enormous respect--Judge Abner Mikva and Justice Thurgood 
Marshall. These two jurists exhibited a deep and abiding passion for 
justice, and each strived throughout his career to ensure that ``equal 
justice under law'' is more than an ideal chiseled on a marble facade, 
but a concrete reality for all our citizens.
  In her opening statement before the Judiciary Committee, Solicitor 
General Kagan noted:

       My first real exposure to the Court came almost a quarter 
     century ago when I began my clerkship with Justice Thurgood 
     Marshall. Justice Marshall revered the Court--and for a 
     simple reason. In his life, in his great struggle for racial 
     justice, the Supreme Court stood as the part of government 
     that was most open to every American--and that most often 
     fulfilled our Constitution's promise of treating all persons 
     with equal respect, equal care, and equal attention.

  In a 1993 law review article, she expressed a fondness for Justice 
Thurgood Marshall's vision of constitutional interpretation, which she 
described as ``demand[ing] that the courts show a special solicitude 
for the despised and disadvantaged.'' She described this vision as ``a 
thing of glory.'' I am hopeful that Solicitor General Kagan will follow 
in the best traditions of Judge Mikva and Justice Marshall and continue 
to strive to make our Nation's laws more just.
  Considering her outstanding intellect and credentials, there simply 
is no doubt Solicitor General Kagan should be confirmed.
  However, for me, there is another, equally important, consideration. 
I also believe that Solicitor General Kagan will be an important and 
needed voice on the Court to ensure that appropriate respect and 
deference is given to Congress, and proper effect is given to our most 
important statutes, such as the Americans with Disabilities Act, the 
Civil Rights Act, and the Age Discrimination in Employment Act, so all 
Americans receive the fullest protections of the law.
  Too often debate regarding the Supreme Court seems to focus on a 
handful of divisive cultural issues. Indeed, many of my colleagues on 
the other side of the aisle have come to the floor to focus on gays in 
the military, abortion and guns. To be sure, these issues are 
important. But, what typically get overlooked in a debate like this are 
the many technical, statutory cases--often involving esoteric legal 
principles--that nonetheless have a tremendous impact on the everyday 
lives of ordinary Americans.
  Unfortunately, the sad truth is that, in case after case, often in 
narrow 5-4 decisions, today's Court has too often slammed shut the 
courthouse door in the face of these ordinary Americans. The Court has 
used arcane legal doctrines and strained readings of Federal statutes 
to prevent citizens from vindicating their civil rights and consumer 
protections. The result is that many people who suffer grievous wrongs 
are not able to bring meritorious lawsuits, and to hold corporations 
and the government accountable.
  In case after case, the Court has undermined vital protections and 
sided with the powerful against the powerless--for instance, in cases 
such as Ledbetter v. Goodyear, Gross v. FBL Financial, and Riegel v. 
Medtronic. In doing so, the Court has repeatedly ignored the clear 
intent of Congress in passing important laws.
  In the ``Sutton trilogy'' the Court repeatedly misread the Americans 
with Disabilities Act and narrowed the scope of individuals deemed 
eligible for protection under that landmark statute. The result of 
these decisions was to eliminate protection for countless thousands of 
Americans with disabilities. These flawed, harmful decisions were 
reversed in the last Congress when we unanimously enacted the ADA 
Amendments Act.
  Similarly, in June, 2009, the Supreme Court decided Gross v. FBL 
Financial, Inc. In a case involving an Iowan, Jack Gross, the Court 
made it harder for those with legitimate age discrimination claims to 
prevail under the Age Discrimination in Employment Act. In doing so, it 
reversed a well established, 20-year-old standard, consistent with that 
under title VII of the Civil Rights Act, that a plaintiff need only 
show that membership in a protected class was a ``motivating factor'' 
in an employer's action. Instead, the Court held that a plaintiff 
alleging age discrimination must prove that an employment action would 
not have been taken against him or her ``but for'' age. In other words, 
the plaintiff must now prove that age discrimination was not a cause or 
a motivating factor, but that it was the determinative cause of an 
adverse employment action. Proving ``but for'' cause is extremely 
difficult and will greatly limit potentially meritorious suits 
involving discrimination Congress sought to prevent.
  In doing so, the Court did not even address the question on which it 
granted certiorari. As Justice Stevens noted in dissent, ``I disagree 
not only with the Court's interpretation of the statute, but also with 
its decision to engage in unnecessary lawmaking. The Court is 
unconcerned that the question it chooses to answer has not been briefed 
by the parties or uninterested amici curie. Its failure to consider the 
views of the United States, which represents the agency charged with 
administering the [Age Discrimination in Employment Act], is especially 
irresponsible.''
  In University of Alabama v. Garrett, a case whose oral arguments I 
personally attended, the Court limited the rights of people with 
disabilities. In doing so, it ignored numerous congressional hearings 
and a task force which collected evidence through 63 public forums 
around the country attended by more than 7,000 persons. In United 
States v. Morrison and Kimel v. Florida Board of Regents, the Court 
completely ignored extensive congressional fact-finding and struck down 
parts of the Violence Against Women's Act and the Age Discrimination in 
Employment Act, respectively.
  The contrast with Solicitor General Kagan is stark. She repeatedly 
made clear her approach to judging: respect for congressional intent 
and for long standing precedent. She consistently made clear that a 
judge's personal views should play no role in interpreting a statute 
and ``the only question is Congress's intent.'' Unlike some current 
members of the Court, moreover, she made clear that where the text of a 
statute is ambiguous she will look to legislative history--``a judge 
should look to other sources, should look to the structure of the 
statute, should look to the history of the statute in order to 
determine Congress's will.'' After her confirmation hearing and based 
on my personal meeting with her, I am convinced she will give full 
effect to our most important statutes.
  Finally, as I listen to the debate surrounding Solicitor General 
Kagan's confirmation, I find it remarkable that conservatives continue 
to accuse every Democratic appointed nominee of being ``activist.'' It 
is a tired bumper sticker slogan that not only has no meaning but is 
divorced from reality.
  In fact, what is clear from this debate is that it is the 
conservatives who want to use the courts to achieve a desired political 
result and to thwart the democratic will of the people, as expressed 
through their elected representatives.
  For example, the ranking member of the Judiciary Committee, Senator 
Sessions, noted his concern that Solicitor General Kagan ``will bring 
to the bench a progressive activist judicial philosophy which holds 
that unelected judges are empowered to set national policy from the 
bench.''

[[Page 15226]]

  I find it ironic that this charge is bandied about by the same people 
most eager to have the courts strike down as unconstitutional the 
recently enacted health care reform bill. To strike down this law would 
require an unelected judge to ignore the clear language of the 
Constitution, reverse precedents that go back to John Marshall, 
disregard extensive fact-finding by Congress, and overturn a decision 
of a majority of both Houses of Congress and the President of the 
United States. That would be the height of judicial activism, the 
height of ``making national policy from the bench.''
  The reality, is that, the Rehnquist and Roberts Courts have 
invalidated more laws than any previous Courts.
  It is conservatives who not only want the Court to make national 
health care policy, but also to limit the ability of Congress to keep 
the corrupting influence of corporate spending out of our democracy, as 
the Court did in Citizens United.
  It is conservatives who second guess decisions by Congress, including 
a unanimous Senate, to ensure the rights of all Americans to vote, as 
the Roberts Court suggested in Northwest Austin Municipal Utility 
District No. One v. Holder.
  It is conservatives who want the judiciary to second guess decisions 
made by local sheriffs in keeping guns out of the hands of criminals.
  It is conservatives who want the judiciary to second guess local 
zoning decisions, environmental and land use regulations.
  It is conservatives who want the courts to invalidate efforts by 
Congress and local governments to eliminate racial discrimination.
  Given the current Court's repeated disregard for Congress and for our 
efforts to expansively protect American citizens, I believe it is 
imperative that the next justice be someone who respects precedent, 
strives to apply congressional intent and purpose, and understands the 
importance of this nation's landmark civil rights protections. Based on 
her record and after meeting her, I am confident Solicitor General 
Kagan will be that type of jurist.
  Solicitor General Kagan clearly has the intellect, experience and 
judgment to be an outstanding Justice. I am proud to support her 
nomination.
  Mr. FEINGOLD. Mr. President, I want to speak briefly about the 
nomination of Elena Kagan to be an Associate Justice of the U.S. 
Supreme Court.
  First, I commend the chairman of the Judiciary Committee and his 
staff for their efforts to make this confirmation process so thorough 
and transparent. The committee had the opportunity to review nearly 
200,000 pages of internal memos and emails from Ms. Kagan's service as 
a law clerk to Justice Thurgood Marshall and as a White House aide 
during the Clinton administration--making the examination of her record 
one of the most thorough and searching in history. I appreciate that 
President Obama and President Clinton did not raise claims of executive 
privilege to try to stop the release of documents, which was a 
refreshing change and a practice that I hope future Presidents will 
follow in years to come.
  All but a tiny fraction of these documents were made available 
online, granting extraordinary access to the public. I said after last 
year's hearings for Justice Sotomayor that Chairman Leahy had set a new 
standard for transparency and public access to Supreme Court nomination 
hearings, and in these proceedings he did it again. I commend him and 
his staff for their tremendous work over the past few months.
  There is no question that Elena Kagan is eminently qualified for a 
position on the Supreme Court. She has an impressive education, she has 
worked at the highest levels of government, and she has served as dean 
of a top law school. During the hearings, she demonstrated a keen mind, 
thoughtful analysis, and a wide-ranging command of the law. She has 
developed a reputation as someone who can reach out to those with whom 
she may not agree and work together, and that skill should prove very 
valuable on the Court. I believe that because she has not previously 
been a judge, she will bring a different and important perspective to a 
Court that is otherwise entirely populated by former appellate judges.
  I appreciated Solicitor General Kagan's efforts to improve the 
confirmation process by being forthcoming in her answers. Fifteen years 
ago she quite fairly criticized the process in an article, arguing that 
the American people deserved more substantive discussions of the law. 
While I can't say that she quite lived up to the high standard that she 
set for nominees in 1995, I do believe that she tried to answer our 
questions as openly and comprehensively as she could, given what the 
confirmation process has become.
  I came away from the confirmation process convinced that Elena Kagan 
understands the appropriate relationship between the courts and 
Congress. As she explained at the Judiciary Committee hearing, her work 
with Congress during her time at the White House taught her a healthy 
respect for the political branches and how difficult it can be for 
Congress to pass legislation. I hope that she will keep this in mind 
before she votes to overturn a bill that Congress may have spent years 
drafting and debating.
  But while this deference is important, Solicitor General Kagan also 
demonstrated that she recognizes the critically important role of our 
judicial system in serving as a check on the other branches of 
government--in ``policing constitutional boundaries,'' as she put it. 
She spoke eloquently about the early experiences of Justice Marshall 
and his efforts to eradicate Jim Crow laws and racial segregation. She 
explained that what was so incredible about his struggle for equality 
was that ``the courts [took] seriously claims that were not taken 
seriously anyplace else. . . . In other words, it was the courts' role 
to make sure that even when people have no place else to go that they 
can come to the courts and the courts will hear their claims fairly.'' 
She said this was a miraculous thing about courts, and I agree with 
her. With regard to executive power, she emphasized that ``no person, 
however grand, however powerful, is above the law.'' She also talked 
about ``the importance of adhering to the law, no matter the 
temptations, no matter the pressures that one might be subject to in 
the course of one's career.'' These insights indicate that she will 
take seriously the Court's role in safeguarding individual rights and 
protecting the rule of law.
  In addition to informing the committee about the nominee, the 
hearings also taught us more about the Supreme Court. We have heard a 
lot in recent years about ``judicial activism.'' But I think the 
hearings helped underscore that activism is in the eye of the beholder. 
As Justice Souter explained in a recent speech, the truth is that the 
Supreme Court has to decide hard cases--cases in which a judge cannot 
simply read the words of the Constitution and objectively evaluate the 
facts. That is, a judge cannot simply act as an umpire. Judges often 
have to choose between positive values in the Constitution that are in 
tension with each other, he noted.
  Justice Souter reminded us that facts may look very different in 
different historical contexts. The quintessential example of this is 
the Court's historic decision in Brown v. Board of Education to 
overturn Plessy v. Ferguson--a case that by current standards would 
surely qualify as judicial activism but that is one of the most revered 
in our nation's history. What this shows us is that judging is not a 
``robotic enterprise,'' as Solicitor General Kagan told the Senator 
from Minnesota, Ms. Klobuchar. Judging is hard and it does, in fact, 
require judgment. But, Justice Souter explained, ``we can still address 
the constitutional uncertainties the way [the Framers] 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.'' I believe Elena Kagan will fulfill that 
vision admirably.
  So I will vote to confirm Elena Kagan to be an Associate Justice of 
the

[[Page 15227]]

U.S. Supreme Court. I look forward to her confirmation as only the 
fourth woman in history to serve on our Nation's highest Court, and I 
expect she will serve with distinction--and with good humor, which she 
demonstrated throughout this arduous process--for many years to come.
  Mr. CONRAD. Mr. President, I rise today to express my support for the 
confirmation of Elena Kagan to serve as the next Associate Justice of 
the Supreme Court.
  Having carefully examined her record, monitored her confirmation 
hearings, and personally met with her, Solicitor General Kagan is 
clearly qualified to serve on the Court. Given her tremendous 
educational accomplishments at Princeton, Oxford, and Harvard, as well 
as her success as a constitutional and administrative law scholar at 
Chicago and Harvard, there is little question that she is 
intellectually qualified for the job.
  General Kagan has had an impressive career, having clerked for 
Supreme Court Justice Thurgood Marshall, worked as the first female 
dean of Harvard Law School, and served as the first female Solicitor 
General of the United States. During that time, she has impressed all 
with whom she has worked with both her character and her talent.
  Some of my colleagues are concerned that previous Federal judicial 
experience is not among her list of accomplishments. Historically, 
however, large numbers of our Supreme Court nominees have not had prior 
judicial experience. The last Supreme Court nominee appointed without 
any such experience served was former Chief Justice William Rehnquist.
  Indeed, the outgoing Court represents the first time in history when 
all nine Justices had Federal judicial experience. That is what 
prompted Justice Antonin Scalia to say that he was ``happy to see that 
this latest nominee is not a federal judge.'' I share that view, and 
welcome the unique academic perspective that General Kagan will bring 
to the Court.
  Others with concerns about General Kagan have pointed to her 
treatment of military recruiters as the dean of Harvard Law School or 
memos she wrote when she was an advisor in the Clinton administration. 
In addition to the explanations provided to me by General Kagan during 
our meeting, I am reassured about these controversies by the fact that 
she has received strong support from legal minds across the political 
spectrum.
  General Kagan has earned high praise from conservatives like Jack 
Goldsmith and Miguel Estrada, as well as from every former Solicitor 
General since 1985, including Ted Olson and Ken Starr. These are not 
people who make such endorsements lightly. They would not speak well of 
someone who is outside the mainstream.
  When considering my vote on nominees to the Supreme Court, my key 
test is whether or not the President's nominee is qualified to serve on 
the Court, not whether I agree with everything he or she have ever 
done. As Senators, we must examine the record, accomplishments, 
intellect, and character of each judicial nominee put before us, and 
determine whether each individual is worthy to serve on the bench. This 
is the standard I used when I voted to confirm Chief Justice John 
Roberts, Justice Samuel Alito, and Justice Sonia Sotomayor. And that is 
the standard I am using in voting to confirm Elena Kagan.
  Mr. UDALL of New Mexico. Mr. President, I rise today to talk about 
Solicitor General Kagan's experience. Over the past few months, there 
has been a lot of talk from our friends across the aisle about whether 
Ms. Kagan is qualified to be our country's 112th Supreme Court Justice.
  They say she has never been a judge. How conveniently they forget 
that some of the most well-respected Justices in the history of the 
Supreme Court also brought life experiences outside the ``judicial 
monastery,'' which President Obama so ably encouraged us to look 
beyond. Former Chief Justice William Rehnquist is one example. Former 
Justice Lewis Powell, Jr., is another.
  They also conveniently forget that just a few decades ago, most 
Justices had little or no judicial experience. In fact, it is General 
Kagan's diversity of life experiences that, in my opinion, make her 
exceptionally qualified for the High Court. President Obama said one of 
the primary reasons he nominated General Kagan was because of her 
``understanding of law--not as an intellectual exercise or words on a 
page--but as it affects the lives of ordinary people.'' I couldn't 
agree more.
  The inscription that greets visitors to the Supreme Court building 
just across the street reads: ``Equal Justice Under Law.'' That 
inscription is at the heart of the experience General Kagan would bring 
as the newest member of the High Court.
  That experience includes a reputation as one of the Nation's foremost 
legal minds; as a legal advisor to two Presidents; as the first woman 
to serve as Dean of Harvard Law School; and as the Nation's first 
female solicitor general.
  It also includes more personal experiences, many of which mirror the 
lives of the American people she has committed her own life to serve.
  She is the child of immigrants. She is the daughter and sister of 
public schoolteachers, and she has been a teacher herself. She is an 
advocate for her students. And she is a proponent of discussion and 
debate that educates, respects and improves upon the lives of all it 
impacts.
  It is because of all of these experiences--as President Obama said on 
the day he introduced her--that General Kagan will make the Nation's 
highest Court ``more inclusive, more representative, more reflective of 
us as a people than ever before.''
  I am confident that Solicitor General Kagan has the experience that 
will make her a stellar Justice, and I look forward to casting my vote 
in favor of her confirmation to the Supreme Court.
  Mrs. LINCOLN. Mr. President, I come here today to discuss one of the 
most important duties we exercise as Senators the confirmation of a 
United States Supreme Court Justice.
  As a U.S. Senator, I have a responsibility under the Constitution to 
determine if nominees to the Supreme Court are qualified for the job. 
In making this determination, I consider a nominee's knowledge of the 
Constitution and the law as well as their ability to be deliberate and 
to hear every case that comes before them impartially and without 
personal bias.
  I believe Ms. Kagan passes that test and that she is qualified to 
serve on the U.S. Supreme Court.
  I have made this decision after carefully reviewing the Judiciary 
Committee record on her nomination and visiting with Ms. Kagan 
personally on two occasions to discuss her nomination. I was impressed 
with her knowledge, humility, and candidness, and I believe she was as 
forthcoming in our conversations as any individual whose Supreme Court 
nomination I have considered.
  As Solicitor General for the United States, Elena Kagan served as the 
Federal Government's lawyer in chief, representing all Americans, 
including Arkansans, before the U.S. Supreme Court.
  A passion for public service and the law has been the driving force 
behind her career. Elena Kagan is the first woman to serve as Solicitor 
General, and the first woman to serve as the Dean of Harvard Law 
School. She previously worked in the Clinton White House as Deputy 
Assistant to the President for Domestic Policy and as Associate Counsel 
to the President. She spent several years in private practice after 
serving as a law clerk for the U.S. Court of Appeals for the District 
of Columbia, and for Justice Thurgood Marshall on the U.S. Supreme 
Court.
  I believe the fact that Elena Kagan has not worked as a judge will 
benefit the Court. She will bring a fresh voice and unique perspective 
to the discussion on cases that come before the Court. There is already 
a persuasive precedent for a nominee with no judicial experience to 
serve on the U.S. Supreme Court. In fact, 41 Supreme Court justices, 
including Chief Justice William Rehnquist, had no experience serving on 
a lower federal or state

[[Page 15228]]

court. And many former justices who also did not previously work in the 
judicial branch have similar backgrounds to that of Solicitor General 
Kagan.
  Since Ms. Kagan was nominated for this position in May, I have heard 
from many Arkansans both for and against her confirmation. In terms of 
the concerns that have been raised by those who oppose her 
confirmation, I have examined her record regarding those issues and 
have spoken to the nominee on two occasions to discuss those matters 
further. After careful thought and consideration in fulfilling my 
responsibility to judge her fitnesss for this position, I have found 
nothing that I believe disqualifies her from being confirmed.
  There is no doubt Elena Kagan holds the Constitution and the Court's 
precedents in high regard. During her nomination hearings, Elena Kagan 
responded to numerous questions about a variety of issues. In response 
to one question regarding recent Supreme Court rulings involving the 
Second Amendment, she stated, ``there is no question that the Second 
Amendment guarantees Americans the individual right to possess and 
carry weapons in case of confrontation.'' Further, General Kagan 
explicitly said that the recent Heller and McDonald decisions that 
secure a fundamental and individual right to own a firearm for self 
protection is ``settled law.'' Ms. Kagan has personally assured me she 
has no desire or intention of working to overturn either decision.
  It is true Ms. Kagan has not promised how she would decide future 
Second Amendment cases that may come before the Court. Neither Justice 
Roberts nor Justice Alito made any pledges or promises in that regard 
either during their confirmation hearings. To do so would betray one of 
the basic foundations of our system of government which is a fair 
minded and independent judiciary. Further, after reviewing the 
Judiciary Committee hearing record for Ms. Kagan, Justice Roberts and 
Justice Alito, in my view Ms. Kagan was as, if not more, forthcoming 
regarding her views on the Second Amendment than the two most recent 
nominees made by a Republican President.
  One final comment General Kagan made to me during our last 
conversation about the Second Amendment was her desire to join Justice 
Scalia on one of his hunting trips to get better acquainted with her 
colleagues on the Court if she is confirmed. Sounds like a good idea to 
me.
  Elena Kagan has also shared with me her deep respect and honor for 
the military and the men and women in uniform who risk their lives to 
defend our freedoms. Her father was a veteran, and she has taken with 
her the reverence for the military he instilled in her. In 2007, Elena 
Kagan was invited to speak at West Point military academy, where she 
spoke to cadets about fidelity to the Constitution and the rule of law. 
General Kagan said she accepted this invitation, something she rarely 
does, as an opportunity to thank the senior cadets for their 
contributions and service to our country.
  Both in our personal conversations and in her testimony before the 
Senate Judiciary Committee, Ms. Kagan has explained her actions as Dean 
of Harvard Law School regarding military recruiting.
  The bottom line for me is that Elena Kagan never denied military 
recruiters access to students on campus and that she holds the men and 
women in uniform who fight to defend the freedoms we cherish as 
Americans in high regard. Evidence of this is supported by military 
veterans themselves associated with the law school who have spoken 
favorably of Ms. Kagan's treatment of students in the military and the 
military in general. A group of Harvard Law School Iraq War Veterans 
published a letter stating that Kagan, ``has created an environment 
that is highly supportive of students who have served in the 
military.''
  It is also worth noting that Solicitor General Kagan is supported by 
a long and distinguished list of law associations, organizations, 
members of Republican and Democratic administrations, unions, advocates 
and professionals. The list of supporters even includes every former 
Solicitor General since 1985, including Ted Olsen and Ken Starr.
  As I have said with previous Supreme Court nominees selected by two 
different Presidents, I won't agree with every decision that he or she 
makes. However, the standard for evaluating Supreme Court nominees 
should be whether he or she is qualified for the job and is prepared to 
place the law and the integrity of our Constitution ahead of any 
personal or political beliefs he or she may have. I believe Ms. Kagan 
meets that standard which is why I will support her confirmation.
  Mr. WYDEN. Mr. President, I rise in support of the nomination of 
Solicitor General Elena Kagan to serve as Associate Justice of the 
United States Supreme Court. A lifetime appointment to the highest 
Court in the land is a serious matter, and confirming each Justice is 
one of the most solemn duties of any Senator.
  When I sat down with her, I was struck by Ms. Kagan's obvious 
intelligence and candor. It was also obvious that her wealth of 
professional experience has given her a real reverence for our 
country's rule of law. As the confirmation process went on, I paid 
close attention to the answers Ms. Kagan gave to my colleagues on the 
Judiciary Committee in her hearing. What comes across loud and clear 
when one listens to Ms. Kagan is that she has a strong belief in the 
Constitution and an understanding of its purpose to serve and protect 
the American people.
  Throughout the arduous process of being a Supreme Court nominee, Ms. 
Kagan has impressed me at every turn with her intellect, integrity, and 
independence. These are fundamental traits our Nation needs in every 
member of the highest Court in the land.
  But being a Supreme Court Justice requires more than surviving the 
confirmation process. If confirmed, Ms. Kagan would be ruling on the 
most important and urgent matters facing our Nation. Her voice would 
carry with it the rich and varied background of professional experience 
that would sound a note of true intellectual independence.
  Although some have found fault with the fact that she has never 
served as a judge, I have never believed that lack of prior judicial 
experience should stop someone from serving with distinction on the 
Court. After all, some of our greatest jurists had no experience as a 
judge--Justices John Marshall, Louis Brandeis, Felix Frankfurter, and 
William Rehnquist among them. In place of that singular legal 
experience, Ms. Kagan brings expertise that she has earned in all three 
branches of government, as well as the private sector as an attorney in 
private practice and as the dean of Harvard Law School.
  In talking with Ms. Kagan, I came away confident that she well 
understands the proper role of a judge and will not attempt to 
legislate from the bench. I discussed with Ms. Kagan her views and 
approach to some of the important issues the Court will address in 
upcoming years, such as national security, the limits of executive 
power, and the protection of civil liberties.
  I also spoke with Ms. Kagan about an issue of particular concern to 
Oregonians one which they have endorsed twice at the ballot box--the 
right to control end-of-life decisions. Oregon voters twice approved 
death with dignity ballot measures. I have long believed that their 
decision should be respected by the courts, and I am pleased the 
Supreme Court has agreed with that view. While not taking a position on 
specific questions that could come before the Court, Ms. Kagan 
reassured me that she sees this as Oregonians do. She believes end-of-
life decisions are protected by constitutional privacy rights, and she 
believes the Federal Government should not contravene State laws that 
protect individual rights on this issue.
  Finally, I was also comfortable with the way Ms. Kagan explained her 
views on a frequently litigated constitutional issue, the limits of 
congressional power to act under the commerce clause. Ms. Kagan's 
answers assured me she has a very thorough and nuanced understanding of 
commerce clause jurisprudence and that she will rule on commerce 
authority cases with both deference and wisdom.

[[Page 15229]]

  I am convinced, based on everything I have heard, that Ms. Kagan 
possesses the intellect, integrity, and independence to serve as an 
extraordinary Justice on the Supreme Court. With the retirement of 
Justice Stevens, Ms. Kagan certainly has large shoes to fill. But I 
have no doubt she is more than up to the task, and our country's laws 
will be safely guarded in her hands. That is why Elena Kagan has my 
support, and I will vote to confirm her as an Associate Justice of the 
Supreme Court.
  Mr. BEGICH. Mr. President, I am pleased to support the nomination of 
Solicitor General Elena Kagan as Associate Justice on the U.S. Supreme 
Court. By any objective standard, Elena Kagan offers a well-rounded 
combination of academic legal expertise and real world application of 
law and public policy. The President has nominated Ms. Kagan to a job 
she may hold for three decades or more, and in which she will have the 
opportunity to touch the lives of Americans in countless ways. So just 
being an intelligent and hard-working public servant is not enough for 
this vital position. That is why I have taken my time and my 
responsibility seriously, to thoroughly review her record before 
deciding to support her.
  Decisions by the Supreme Court have immediate impacts on the lives of 
everyday Americans when the rulings are handed down. These decisions 
may continue to play a role in the lives of Americans for generations. 
Considering my vote on a Supreme Court nominee, a task I will perform 
soon for the second time in my brief Senate career, is a duty I take 
very seriously.
  I approach this decision from the perspective of a government chief 
executive. It is the constitutional role of the President to nominate 
Supreme Court justices. In the case of a nominee to the Federal courts, 
especially to the Supreme Court, this choice is not about a President's 
ability to carry out a stated agenda. Rather, justices on the highest 
court in the land are there to protect and interpret the Constitution, 
so the highest standards must be applied.
  In my meeting with Solicitor General Kagan, I found her to be 
intelligent and engaging, and open to hearing my thoughts on what is 
important to Alaskans. I listened as Ms. Kagan described the way she 
approached legal issues, and heard from her an approach to the law and 
the Constitution that indicated she will not be an activist judge. I 
agree with my colleague from South Carolina, Senator Lindsay Graham, 
who said the job of a senator is not to second guess the President's 
judgment in selecting Supreme Court nominees, but to determine if the 
candidate is qualified, of good character and understands the 
difference between being a judge and a politician. Ms. Kagan is such a 
person.
  For me as an Alaskan, there were some issues I needed to make front 
and center in our discussion, especially the rights we enjoy and which 
the Supreme Court has recently spoken to under the second amendment of 
the Constitution.
  Alaskans take their second amendment rights very seriously. In a 
State where the daily life for many includes subsistence hunting, 
personal protection and basic survival, our right to keep and bear arms 
is not an academic question. It is a fundamental part of our lives. The 
State of Alaska has gone so far as to pass laws requiring firearms be 
kept in survival gear carried in private airplanes. Unlike much of the 
``Lower 48,'' the wilderness in Alaska is reachable within minutes from 
even our largest cities. Even in the greater Anchorage area encounters 
with wildlife are commonplace and serious injuries occur regularly. 
That is why firearm ownership and use in Alaska transcends the debates 
in Washington over what the second amendment means.
  Much of the opposition to Ms. Kagan's nomination has focused on what 
some charged was her alleged lack of support for second amendment 
rights. Some oppose Ms. Kagan's nomination because she worked for 
Justice Thurgood Marshall and President Bill Clinton. When she was 
asked by Judiciary Chairman Leahy if, after the Supreme Court's 
decisions in Heller and McDonald that the second amendment secures an 
individual's fundamental right to own a firearm and use it for self-
defense, Ms. Kagan's response could not have been more clear: ``There 
is no doubt, Senator Leahy. That is binding precedent and entitled to 
all respect to binding precedent in any case. That is settled law.'' 
Instead of second-guessing or making assumptions about her views, I am 
taking Ms. Kagen at her word.
  Even before the Court's decision in McDonald applied the reasoning of 
Heller beyond the District of Columbia, Ms. Kagan was clear about the 
fundamental nature of the rights protected by the Second Amendment. 
During her confirmation hearing to be Solicitor General, Ms. Kagan 
responded to a question about the meaning of Heller from Senator 
Grassley: ``There is no question, after Heller, that the second 
amendment guarantees Americans the individual right to possess and 
carry weapons in case of confrontation.''' In subsequent questioning, 
Ms. Kagan responded regarding Heller that she would give that decision 
and its reasoning ``the full measure of respect that is due to all 
constitutional decisions of the Court.''
  What Elena Kagan said about the second amendment, especially in light 
of the Heller and McDonald decisions that I supported, cannot be 
considered anti-gun, or anti-second smendment.
  In our meeting, I also asked Ms. Kagan about unique status of Alaska 
Native people and issues. I pointed out that Alaska is home to nearly 
half the 562 federal recognized tribes in the United States and that 
Alaska Natives comprise nearly 20 percent of our State's population. 
Ms. Kagan admitted to being no expert in ``Indian law,'' but expressed 
a willingness to learn about the challenges and opportunities facing 
Alaska Native people. She also expressed support for encouraging the 
courts to adopt procedures making it easier for people whose first 
language may not be English to understand court proceedings.
  Another significant issue for Alaskans is the Supreme Court's 
decision in the Exxon Valdez case. Thousands of Alaskans were damaged 
by that oil spill, yet Exxon took every possible advantage in the U.S. 
court system to delay payment of damages as long as they could. As a 
result, an estimated 20 percent of those damaged by the spill died 
before they could collect any compensation. Ms. Kagan agreed with the 
tragedy of that case and expressed frustration with it dragging on so 
long.
  Mr. President, because of what I have learned in looking at the 
career and record of Ms. Kagan, and reviewing her statements and 
testimony on matters that are important to the people of Alaska I am 
privileged to serve, I am pleased to confirm Elena Kagan as an 
Associate Justice on the U.S. Supreme Court.
  Ms. SNOWE. Mr. President, I rise today to speak to the nomination of 
Solicitor General Elena Kagan to be the next Associate Justice of the 
Supreme Court of the United States. After a careful and considered 
review of her testimony before the Senate Judiciary Committee, her 
overall record, and my personal meeting with her in May, I have 
concluded that General Kagan should be confirmed as the next Associate 
Justice of the Supreme Court.
  General Kagan would succeed Justice John Paul Stevens who has served 
our country as a decorated war veteran, a distinguished Federal 
appellate judge, and a Supreme Court Justice for nearly 35 years. I 
appreciate his service to our Nation, and believe that all of us in 
public service can learn from his dignified manner and sound advice to 
``understand before disagreeing.''
  As with the previous nominees to the Court that I have had the 
responsibility to review, I have not arrived at my decision lightly. It 
has been said that, of all the entities in government, the Supreme 
Court is the most closely identified with the Constitution--and that no 
other branch or agency has as great an opportunity to speak directly to 
the rational and moral side of the American character; to bring the 
power and moral authority of government to bear directly upon the 
citizenry.
  The Supreme Court passes final legal judgment on the most profound 
social

[[Page 15230]]

issues of our time. The Court is uniquely designed to accept only those 
cases that present a substantial and compelling question of Federal 
law; cases for which the Court's ultimate resolution will not be 
applied merely to a single, isolated dispute--but, rather, will guide 
legislatures, executives, and all other courts in their broader 
development and interpretation of law and policy. Ours is a government 
of liberty and order, of State and Federal authority, and of checks and 
balances, and the remarkable challenge of calibrating these fundamental 
balance points is entrusted ultimately to the nine Justices.
  To help meet this extraordinary challenge, any nominee for the Court 
must, as I stated for previous nominees under both Republican and 
Democrat administrations, have a powerful intellect, a principled 
understanding of the Court's role, and a sound commitment to judicial 
method. A nominee must have the capacity to engender respect among the 
other Justices in order to facilitate the consensus of a majority. And 
to warrant Senate confirmation, the nominee must have a keen 
understanding of, and a disciplined respect for, the great body of law 
that precedes her.
  It is with these high standards that we should also evaluate the 
record of General Kagan to serve as the Court's 112th Justice. General 
Kagan is a distinguished graduate from Princeton, Harvard, and Oxford 
Universities where she earned several distinct honors. She served as a 
law clerk to two judges, United States Court of Appeals Judge Abner 
Mikva and United States Supreme Court Justice Thurgood Marshall. 
General Kagan then worked in private practice as an associate at a 
leading D.C. law firm and a law professor at two of the Nation's most 
regarded law schools.
  General Kagan has also served as a special counsel for the Senate 
Judiciary Committee; a lawyer in the Office of the Counsel to a 
President; a policy advisor to a President; and dean of the Harvard Law 
School. Most importantly, she has served as the 45th Solicitor General 
of the United States where she has participated in six oral arguments 
and overseen briefs and certiorari petitions in approximately 100 
cases.
  For her work as Solicitor General, Ms. Kagan has won the support of 
every one of the 10 Solicitors General who have served since 1985, 
including 5 Republican appointees. She has also earned the support of 
over 50 deputy and assistant solicitors general who have served over 
the last 42 years.
  As these highly skilled professionals have noted, the ``job of 
Solicitor General provides an opportunity to grapple with almost the 
full gamut of issues that come before the Supreme Court and requires an 
understanding of the Court's approach to numerous issues from the 
criteria for certiorari review to the Justices' approach to oral 
argument. The constant interaction with the Supreme Court that comes 
with being the most-frequent litigator before the Court also ensures an 
appreciation for the rhythms and traditions of the Court and its 
workload.''
  Prior to her 15 months as Solicitor General, Ms. Kagan had relatively 
little experience as an active practitioner. The American Bar 
Association's principle expectation for a Federal appellate nominee is 
``at least'' 12 years experience actually practicing law, and even now 
she continues to fall short of that. This is due in part to the fact 
that she does not appear to have performed any amicus curiae or pro 
bono work while serving as a law professor.
  Such practical experience often helps the Justices remain connected 
to the effect of their decisions on the lives of everyday people. All 
Supreme Court Justices, regardless of judicial philosophy, weigh the 
Constitution's text, history, context and precedents when deciding the 
landmark cases. Active practice of law experience helps with that 
process because, as prior Justices and distinguished scholars alike 
have observed, the Justices' decisions in landmark cases are inevitably 
``channeled and constrained by who [they] are and what they have lived 
through.''
  General Kagan has not given us the clearest insight into those 
experiences that she has ``lived through'' that will ``channel and 
constrain'' her sense of constitutional boundaries. At the same time, I 
find that her experience in working at the highest levels of all three 
branches of government will provide her with valuable insights as she 
approaches her work on the Court. I also accept her comments from our 
personal meeting that she did indeed have a ``formative experience'' as 
a young lawyer in learning that ``behind legal questions are real 
people with real lives.''
  As regards General Kagan's lack of prior judicial service, I do not 
find that to be disqualifying. Nearly 40 Justices have served on the 
Court without prior judicial experience, including in more recent times 
Louis Brandeis, Hugo Black, Robert Jackson, Earl Warren, Lewis Powell, 
and William Rehnquist. Especially on the current Court where all of the 
existing members come from the Federal appellate courts, General Kagan 
should bring a new and different perspective.
  This brings us to the additional factors we must consider when 
providing our consent on a President's nominee for Associate Justice--
judicial temperament, methodology, integrity and philosophy. By their 
very nature, these attributes are often challenging to measure, but 
they can be assessed through a careful analysis of a nominee's complete 
record.
  With regard to the first consideration, judicial temperament, we all 
agree that it is absolutely essential that a judge be fair, open-minded 
and respectful. Our citizens simply must have confidence that a judge 
who weighs their legal claims does so with an even temperament. A judge 
must be truly committed to providing a full and fair day in court, 
while projecting a sincere equanimity and respect for the law. When 
these attributes are not clearly present in our judges, the public 
justifiably begins to lose faith in the integrity of our courts.
  By all accounts, whether from conservative former Solicitors General 
Ken Starr and Ted Olson, and Assistant Solicitor General Miguel 
Estrada, General Kagan has a clear reputation for a sound judicial 
temperament. She projected poise throughout this process, during her 
hearing and in our personal meeting. Likewise, she has testified and 
spoken about the necessity of courts to provide a ``level playing 
field,'' of maintaining a fidelity to the law, and of the essential 
requirement not to prejudge any case, stating during her hearing that 
judging is about ``what the law says, whether it's the Constitution or 
whether it's a statute . . . the question is always what the law says . 
. . it's what the text of the Constitution says . . . what the law 
says, not a judge's personal views.''
  Turning to the considerations of judicial methodology and integrity, 
General Kagan does not have a judicial service record to review. We 
can, however, examine her scholarship. Here, she has six scholarly 
articles, two scholarly book reviews and a variety of other 
commentaries. I have some concern that this collection is, by 
academia's standards, not especially prodigious, and that General Kagan 
did not continue her scholarship during her six years as Harvard's 
dean.
  Her eight scholarly publications do, however, tackle the difficult 
subjects of Presidential power, the delegation doctrine, and hate 
speech. In particular, her Presidential Administration and Chevron's 
Non-delegation Doctrine article from 2001, as well as The Changing 
Faces of First Amendment Neutrality article from 1992, demonstrate both 
close attention to complicated legal detail and careful legal 
analysis--skills essential for the difficult work of the Court.
  We can also review her approach to judicial methodology from her 
answer to my request to identify three of the Court's constitutional 
opinions--majority, concurring or dissenting--that in her view 
exemplify sound judicial methodology. First, General Kagan chose 
Justice Oliver Wendell Holmes' 1905 dissenting opinion in Lochner v. 
New York. In that case, the Court invalidated a State law prohibiting 
an employer from requiring a baker to work more than 60 hours per week. 
The

[[Page 15231]]

Court reasoned that the statute ``necessarily interferes with the right 
of contract between the employer and employees,'' a right that is 
``part of the liberty of the individual'' protected by the 14th 
amendment.
  General Kagan cited this opinion as a ``concise and persuasive 
formulation of the proper role of the judiciary in relation to the 
political branches of government,'' highlighting these passages:

       I strongly believe that my agreement or disagreement [with 
     the law] has nothing to do with the right of a majority to 
     embody their opinions in law. . . . The Constitution is . . . 
     made for people of fundamentally differing views, and the 
     accident of our finding certain opinions natural and 
     familiar, or novel, and even shocking, ought not to conclude 
     our judgment upon the question whether statutes embodying 
     them conflict with the Constitution of the United States. 
     [Justices should not use their office] to prevent the natural 
     outcome of a dominant opinion, unless it can be said that a 
     rational and fair man necessarily would admit that the 
     statute proposed would infringe fundamental principles as 
     they have been understood by the traditions of our people and 
     our law.

  Next, General Kagan selected a 1927 concurring opinion in Whitney v. 
California where the Court unanimously upheld a conviction for conduct 
threatening to overthrow our government by unlawful means. Calling the 
concurrence an ``inspiring example of a commitment to protecting 
constitutional rights'' and a ``stirring reminder of the value of 
freedom of speech in our society, including its importance to 
democratic self-governance,'' General Kagan cited her admiration for 
this paragraph:

       Those who won our independence believed that the final end 
     of the state was to make men free to develop their faculties, 
     and that in its government the deliberative forces should 
     prevail over the arbitrary. They valued liberty both as an 
     end and as a means. They believed liberty to be the secret of 
     happiness and courage to be the secret of liberty. They 
     believed that freedom to think as you will and to speak as 
     you think are means indispensable to the discovery and spread 
     of political truth; that without free speech and assembly 
     discussion would be futile; that with them, discussion 
     affords ordinarily adequate protection against the 
     dissemination of noxious doctrine; that the greatest menace 
     to freedom is an inert people; that public discussion is a 
     political duty; and that this should be a fundamental 
     principle of the American government. They recognized the 
     risks to which all human institutions are subject. But they 
     knew that order cannot be secured merely through fear of 
     punishment for its infraction; that it is hazardous to 
     discourage thought, hope and imagination; that fear breeds 
     repression; that repression breeds hate; that hate menaces 
     stable government; that the path of safety lies in the 
     opportunity to discuss freely supposed grievances and 
     proposed remedies; and that the fitting remedy for evil 
     counsels is good ones.

  Finally, General Kagan identified a 1952 concurring opinion in 
Youngstown Sheet & Tube Co. v. Sawyer. There, the Court held that 
President Truman exceeded his constitutional authority when he ordered 
the Secretary of Commerce to take possession of most of the Nation's 
steel mills in the face of a labor strike during the Korean war. 
Respecting a concurring opinion as the ``definitive framework for 
evaluating the constitutionality of presidential action,'' General 
Kagan observed that:

       Two aspects of the opinion are notable. First, Justice 
     [Robert] Jackson's opinion is a classic formulation of the 
     propositions that executive authority is not unlimited even 
     in wartime and that the President is not above the law. That 
     is all the more remarkable given that its author had served 
     in the Executive Branch for much of his career, including as 
     Solicitor General and Attorney General. Second, Justice 
     Jackson refused to oversimplify constitutional analysis. . . 
     . [H]is analysis depended in large measure on an assessment 
     of relevant historical practices and political processes. 
     That analysis was resolutely legal in its nature; it was not 
     based on the Justice's political preferences or personal 
     views. But the analysis took into account the full 
     complexities of constitutional interpretation in its relation 
     to modern governance. That is what has given Justice 
     Jackson's concurrence its staying power and has made it the 
     Court's principal precedent on executive power.

  These three replies by General Kagan are informative. Together they 
argue for a limited judicial role, and demonstrate her command of the 
philosophical underpinnings of core constitutional doctrine and her 
insight into the necessity of aligning those theories with the 
functional ``complexities of modern governance.'' They also convey an 
awareness of, and therefore perhaps a capacity for, judicial 
statesmanship. As Justice Felix Frankfurter once noted, ``breadth of 
vision'' and ``capacity to transcend one's own experience'' are often 
the defining qualities that matter most in guiding a Justice's work on 
landmark cases.
  As regards her views on substantive subjects of law, conservative 
attorneys such as Charles Fried, Michael McConnell and Paul Clement 
have agreed that General Kagan is in the mainstream. For example, she 
has affirmed forcefully that stare decisis is a critical command for 
the Court. As she wrote to the committee, that command requires a 
careful inquiry into whether the precedent has ``been found unworkable, 
whether subsequent legal developments have left the rule an 
anachronism, or whether premises of fact are so far different from 
those initially assumed as to render the rule irrelevant or 
unjustifiable.'' Moreover, she testified that:

       The entire idea of precedent is that you can think a 
     decision is wrong. You can have decided it differently if you 
     had been on the court when that decision was made. And 
     nonetheless you are bound by that decision. That's--if the 
     doctrine of precedent enabled you to overturn every decision 
     that you thought was wrong, it wouldn't be much of a 
     doctrine. . . . I think when the court looks as though it's 
     flipping around and changing sides just because the justices 
     have changed, that's bad for the credibility of the 
     institution and it's bad for the system of law.

  General Kagan has also stated that the Constitution protects a right 
of privacy and that Roe v. Wade is not only ``settled law'' but has 
been ``doubly settled'' by Planned Parenthood v. Casey. Likewise, she 
has stated that foreign law should not have precedential weight in 
``any but a very, very narrow set of circumstances,'' such as limited 
cases involving ``ambassadors'' or the ``law of war.'' And finally, she 
has testified, as noted above, that Youngstown Sheet & Tube remains the 
``determinative'' governing standard in assessing Presidential wartime 
powers.
  With respect to the second amendment, in my view, as a long-time, 
ardent supporter of second amendment rights, I have carefully examined 
General Kagan's work as the President's attorney a decade ago on a 
variety of legislation affecting gun ownership rights. This is a fair 
question and, here, General Kagan testified as follows:

       The work that I did in the Clinton White House was all work 
     . . . before Heller was decided, and so we really . . . did 
     not consider . . . regulations through the Heller prism . . . 
     because Heller didn't exist at that time. . . . What 
     President Clinton was trying to do back in the 1990s and what 
     I as his policy aide was trying to help him do, was to 
     propose a set of regulations that had very strong support in 
     the law enforcement community, that had actually bipartisan 
     support here in Congress to keep guns out of the hands of 
     criminals, to keep guns out of the hands of insane people. It 
     was very much an anti-crime set of proposals that I worked on 
     back then in the '90s.

  A former White House colleague corroborated General Kagan's 
testimony: ``In all these cases, [President] Clinton had already 
settled views on these questions. Our job was to make sure the 
government's policy reflected what he wanted. He'd already made up his 
mind on most of these contentious issues.''
  As several members of the committee during General Kagan's hearing 
noted, this same point--that a lawyer's job is to represent the 
client's views, and not the lawyer's own views--was also made by 
Justices Roberts and Alito when they were asked during their 
confirmation hearings about advice they gave while serving as executive 
branch attorneys. Both nominees testified that their executive branch 
legal counsel reflected ways to advance their elected client's, not 
their own personal, legal interests and policy preferences.
  With respect to the fact that, more recently, General Kagan did not 
file a brief for the United States in McDonald v. City of Chicago--
McDonald did present an important question regarding the interplay of 
the second and 14th amendments, and I joined an amicus brief in support 
of Mr. McDonald's claim to incorporate the second amendment through the 
14th amendment, so that the protections of the

[[Page 15232]]

second amendment would apply not just against Federal acts, but against 
the acts of State and local governments as well. Here, several 
observations are warranted.
  First, McDonald presented only the question of whether the second 
amendment applied to State and local governments, and not what the 
scope of the protections of the amendment is. As a result, McDonald, 
unlike Heller, presented no implications for the constitutionality of 
Federal gun laws. Accordingly, the United States was not a party in the 
case.
  Second, the issue of incorporation is by its very nature one of 
primarily State and local, and not Federal, concern. This explains the 
amicus brief signed by 38 States in this case. This also explains why 
the Solicitor General's Office has a tradition of not weighing in on 
incorporation cases. General Kagan wrote to the committee in response 
to a supplemental question that:

       It has long been the practice of the Office of the 
     Solicitor General not to file an amicus brief in cases 
     concerning the application of a constitutional provision to 
     the states (so-called incorporation cases). Although 
     incorporation cases raise important issues of constitutional 
     interpretation, and may matter greatly to individual 
     citizens, those issues do not implicate the responsibilities 
     and obligations of the federal government under the 
     Constitution. Incorporation cases therefore do not fall 
     within the category of cases in which the Office of the 
     Solicitor General files amicus briefs: those where the 
     federal government itself has a clear and specific interest 
     in the resolution of the case.

  This response is consistent with the reported statement of former 
Solicitor General Erwin Griswold, who was uniquely appointed by a 
Democratic President, President Johnson, and retained by his Republican 
successor, President Nixon. In 1970, General Griswold reportedly wrote 
that incorporation cases are rarely of direct interest to the Federal 
government because ``fundamental considerations of federalism militate 
against executive intrusion'' into issues of State and local law.
  Further, although former Solicitor General Paul Clement did appear in 
Heller for the United States, under the Bush administration, Heller was 
not an incorporation case. Moreover, the broader question presented by 
Heller, unlike McDonald, did implicate the basic scheme of Federal 
firearms regulations.
  Yet even then, General Clement argued in Heller for a somewhat 
narrower ruling regarding personal rights. He also argued for a 
somewhat higher level of judicial scrutiny of challenges to regulation 
of such rights in order to ensure that the longstanding existing 
Federal laws--like possession of machine guns, possession by convicted 
felons, or possession on Federal property--that his office is required 
to defend were protected. A majority of the Court ultimately respected 
and accepted General Clement's concern in both Heller and McDonald. As 
Senator Cornyn noted at the hearing, Justice Alito wrote for the 
majority in McDonald that:

       We made it clear in Heller that our holding did not cast 
     doubt on such longstanding regulatory measures as 
     `prohibitions on the possession of firearms by felons and the 
     mentally ill, . . . laws forbidding the carrying of firearms 
     in sensitive places such as schools and government buildings, 
     or laws imposing conditions and qualifications on the 
     commercial sale of arms.' We repeat those assurances here; . 
     . . incorporation does not imperil every law regulating 
     firearms.

  Perhaps most importantly, General Kagan testified repeatedly that 
both McDonald and Heller are settled law. As regards McDonald, General 
Kagan said, ``I do think that . . . decision [McDonald] [is] settled 
law; entitled to all of the weight that any precedent of the Supreme 
Court has; [and] . . . can only be overturned if there is strong 
evidence the ruling [among all of the other stare decisis factors] is 
unworkable.''
  On Heller, she said: ``I think that Heller is settled law and Heller 
has decided that the Second Amendment confers such an individual right 
to keep and bear arms. I have absolutely no reason to think that the 
court's analysis was incorrect in any way. I accept the court's 
analysis and will apply it going forward.'' She also said that Heller's 
finding that a personal right of possession is ``deeply rooted in this 
Nation's history and traditions'' is a ``central part of the 
rationale'' of Heller and, again, is ``settled law.''
  Moreover, she testified that she has ``never believed that the 
president had the power to prohibit [the sale of firearms] without 
legislative authorization. . . . In fact, that's one [issue] that 
Heller and McDonald don't effect, that the president didn't have that 
power before and doesn't have that power after.'' She also testified 
that ``the Second Amendment question, as defined by Heller, was so 
peculiar to our own constitutional history and heritage that . . . 
foreign law didn't have any relevance.''
  Turning to another important issue, I also share the concern for how 
General Kagan approached the issue of military recruiting at Harvard 
Law School. Under the Solomon amendment, universities like Harvard that 
receive Federal funding are required to permit military recruiters on 
campus. Opposing the military's don't ask, don't tell policy, General 
Kagan was one of several deans to relegate military recruiters to a 
less preferred position by withholding Office of Career Services' 
sponsorship.
  General Kagan also participated in a lawsuit challenging the Solomon 
amendment as unconstitutional. Had she prevailed in that suit, colleges 
and universities across the country could have denied the military on-
campus access to students across the country. Fortunately, the Supreme 
Court summarily and unanimously rejected this challenge in 2006 in 
Rumsfeld v. F.A.I.R.
  General Kagan continues to defend her decision as a difficult 
mediation of competitive on-campus interests. But the prevailing 
recognition here is that the Nation was fully engaged in two wars 
designed to advance national security, and so I continue to be troubled 
that General Kagan chose to relegate the military rather than her 
institution's financial or policy interests.
  Reviewing the final consideration of judicial philosophy, General 
Kagan has spoken directly to the important but appropriately limited 
role that the Court plays in our constitutional scheme of government. 
She recognizes that the Court is the ``least accountable'' of our 
governmental institutions and that the Court is not ``self-starting.'' 
Citing Alexander Bickel and his 1961 seminal article, General Kagan 
stated in our personal meeting that the ``passive virtue'' of the Court 
rests in what it does not do, and that the Court should work hard ``not 
do more than is called for'' and ``not go too far.'' Likewise, she said 
in her questionnaire that ``I think it is a great deal better for the 
elected branches to take the lead in creating a more just society than 
for courts to do so.''
  We recently witnessed what happens when the Court does not adhere to 
such decision-making restraints. We are all familiar with Citizens 
United v. F.E.C. where the Court overruled a mere 7-year-old precedent 
to strike down the electioneering communications provision of the 
Bipartisan Campaign Finance Reform Act.
  There, the majority effectively converted on its own motion an as-
applied challenge into a facial challenge through its order for re-
argument. According no deference to our 100,000-page factfinding record 
that took Congress over 10 years to assemble, and further dismissing 
the commands of stare decisis, the majority then rejected the 
relatively recent 1990 precedent of Austin v. Michigan Chamber of 
Commerce and the very recent 2003 precedent of McConnell v. F.E.C. 
Instead, the majority inflated the precedential value of the majority's 
very recent--only decided in 2006--and readily distinguishable F.E.C. 
v. Wisconsin Right to Life and eschewed arguments to decide the case on 
narrower statutory grounds. Consequently, and in striking contrast to 
claims of ``judicial modesty,'' the majority then struck down the 
electioneering communications provision of BCRA on the broadest of 
grounds.
  Even granting that General Kagan was an advocate in the case, I was 
pleased to hear her say in our personal meeting that the Citizens' 
majority

[[Page 15233]]

``did not respond in the right way. Congress had gone through an 
enormous record and the Court had ruled only a few years earlier. From 
where I sat, the Court was wrong.''
  I also agree with Justice Stevens' dissent in Citizens that the 
activist ``path'' taken by the Citizens'' majority will ``do damage'' 
to the Court itself. Citizens is not, of course, the only recent case 
in which Justices and scholars from across the political spectrum have 
viewed the Court's majority as overreaching. Indeed, opinions in 
Montejo v. Louisiana, Gross v. FBL Financial Services, Ashcroft v. 
Iqbal, and related commentaries have all expressed the same concern.
  Finally, I note that, if confirmed, General Kagan will become the 
fourth female Justice ever to serve on the Supreme Court. She will 
follow Sandra Day O'Conner and join Justices Ruth Bader Ginsburg and 
Sonia Sotomayor. General Kagan has already become the first woman to 
serve as Solicitor General of the United States, and the fact remains 
that it does make a difference who women and girls see at the pinnacles 
of government and industry. As Justice Ginsburg observed at the time of 
Justice Sotomayor's nomination, ``women belong in all places where 
decisions are being made.''
  Ultimately, when the Framers accorded us the special role of 
confirming judicial nominees that we are exercising here today, having 
delegated the power of nomination to the Office of the President, and 
having recognized that elections to that office may affect the overall 
composition of the Court, the Framers expressly intended that we review 
judicial nominees not by their affiliations, but by their 
qualifications. This is why Alexander Hamilton wrote in Federalist 76 
that the Senate should deprive a duly elected President of his or her 
nominee only for ``special and strong reasons.''
  In reviewing the record of General Kagan's scholarship, the to, 
evidence of her reputation, and her responses to the committee and 
other Members throughout this process, I find in that General Kagan has 
a very capable intellect and a deep respect for the rule of law. She 
has a command of the important but limited role of the courts, and a 
demonstrated commitment to stability in the law. It is therefore my 
conclusion that Solicitor General Elena Kagan is qualified to serve as 
the next Associate Justice of the Supreme Court.
  Ms. CANTWELL. Mr. President, it is with great pride that I express my 
strong support for the nomination of Solicitor General Elena Kagan to 
be the next Associate Justice of the United States Supreme Court. A 
trailblazer in many ways, Solicitor Kagan was the first female to serve 
as Solicitor General of the United States and the first female Dean of 
Harvard Law School, one of the most prestigious legal educational 
institutions in our Nation. Her nomination as Solicitor General 
garnered the bipartisan support of every Solicitor General who served 
from 1985 to 2009, including Charles Fried, Ken Starr, Drew Days, 
Walter Dellinger, Seth Waxman, Ted Olson, Paul Clement, and Greg Garre, 
a testament to her ability to build bridges across partisan lines and 
her fidelity to law above politics.
  Solicitor Kagan brings a wealth of historic legal experience to the 
position of Associate Justice, including serving as law clerk to 
Justice Thurgood Marshall, the first African-American to serve on the 
Supreme Court, working as an associate at the law firm of Williams & 
Connolly, teaching as a law professor at the University of Chicago and 
Harvard University, and acting as policy counsel to President Clinton 
and special counsel to the Senate Judiciary Committee. In these 
capacities she handled legal and policy issues ranging from public 
health, to education, to war crimes, to campaign finance and welfare.
  Solicitor Kagan's experience with different branches of government 
equips her with a unique perspective on the law and the challenges the 
Court will face in the coming years. Her confirmation honors the legacy 
of Justice John Paul Stevens, the outgoing Justice, who was well known 
for his service of dignity and intellect, without regard for partisan 
divides.
  If we confirm her--and I am confident we will--Solicitor Kagan will 
be only the fourth woman in history to serve on the Supreme Court, and 
will be the third woman to sit on the current Court, the highest number 
of female justices to serve at one time.
  Solicitor Kagan's confirmation will be an inspiration for generations 
of female lawyers and legal scholars to come, and will make an 
indelible impression on this country's legal landscape. Today, women 
comprise only 19.2 percent of federal district court judgeships, and 20 
percent of federal appellate judgeships, highlighting the need for 
increased gender representation on our Nation's highest courts. 
Solicitor Kagan's confirmation is only a step towards reducing this 
gender disparity in our Nation's judiciary.
  I followed closely Solicitor Kagan's hearings, and I am impressed by 
Solicitor Kagan's commitment to respect the rule of law. The hearings 
for Solicitor Kagan, who testified for more than 17 hours and answered 
over 540 questions, were thorough and fair. In her opening statement, 
Solicitor Kagan observed that, ``the Supreme Court's role in our 
society is to act as a safeguard to the rule of law by maintaining a 
commitment to impartiality, principle, and restraint; and the role of a 
Supreme Court justice is to approach each case with even-handedness and 
fair-mindedness, to ensure that everyone who comes before the Court 
receives a fair shake.''
  Solicitor Kagan also expressed her admiration for Justice Thurgood 
Marshal; under whom she clerked, for his view of the Supreme Court as a 
means of access to justice for those left without redress after unfair 
treatment. Her expressed judicial philosophy of impartiality and 
fairness, to individuals of all classes, income levels, and interests, 
is a critical component to the High Court in a climate where we see 
increasing judicial activeness and partiality to special interests.
  Solicitor Kagan's experiences as a scholar and policy advisor 
unquestionably qualify her for a position on the Supreme Court. I find 
it disingenuous that several of my conservative colleagues have 
attacked Solicitor Kagan's lack of judicial experience. The last two of 
the previous four chief justices of the Supreme Court, William 
Rehnquist and Earl Warren, had no judicial experience when first 
nominated to the Court. Nor did, Felix Frankfurter, Louis Brandeis, and 
John Marshall, known as the ``Great Chief Justice.'' Over one-third of 
the past 111 Supreme Court justices had no judicial experience when 
they were first nominated. Rather than being a product of the judicial 
monastery, Solicitor Kagan brings a real world perspective on the role 
of a justice, with a view to the practical contexts and implications of 
the Court's decisions. Solicitor Kagan's two decades of experience 
working in every branch of government exceptionally qualify her as an 
Associate Justice, and as one of the top legal thinkers in the country.
  My conservative colleagues have also criticized Solicitor Kagan's 
enforcement of Harvard Law School's anti-discrimination policy. 
Solicitor Kagan did not assert her own personal agenda and oppose 
military recruitment on campus, as several of my colleagues have 
alleged. Instead, as Dean, Kagan was charged with enforcing an anti-
discrimination policy in effect at Harvard since 1979 that prevented 
organizations discriminating against selected individuals from 
recruiting through the school's office of career services. Kagan's 
enforcement of this policy was consistent with her predecessors, Dean 
Robert Clark and Harvard President Larry Summers. However, Kagan 
ensured that military recruiters still had access to students. Kagan 
noted, ``[M]ilitary recruiters had access to Harvard students every 
single day I was dean . . . I'm confident that the military had access 
to our students and our students had access to the military throughout 
my entire deanship.'' Solicitor Kagan's work to ensure student access 
demonstrates her support of our military and her encouragement of the 
brightest students' involvement in our Armed Services.

[[Page 15234]]

  Solicitor's Kagan's widespread support is a testament to her impact 
on not only her colleagues and peers, but also upon a large number of 
those in the legal profession. The American Bar Association, after 
conducting an investigation over several weeks that included peer 
reviews, concluded that Solicitor Kagan merited its highest rating of 
unanimously ``well qualified.'' To merit the Committee's rating of 
``well qualified,'' a Supreme Court nominee must be a preeminent member 
of the legal profession, have outstanding legal ability and exceptional 
breadth of experience, and meet the very highest standards of 
integrity, professional competence, and judicial temperament.
  In addition, Solicitor Kagan has received support from Democrats and 
Republicans and a range of civil rights, non-profit, and advocacy 
organizations, including the National Women's Law Center, the National 
Partnership for Women and Families, Earthjustice, the American Bar 
Association, the Alliance for Justice, the National Association for the 
Advancement of Colored People (NAACP) Legal Defense and Education Fund, 
the National Association of Women Judges, the Hispanic Bar Association, 
the Service Employees International Union (SEIU), and the Leadership 
Conference on Civil and Human Rights (LCCR). Solicitor Kagan is also 
endorsed by her colleagues in academia, and a group of over sixty-nine 
law school deans across the country expressed their written support for 
her nomination to the Senate Judiciary Committee in a June 15, 2010 
letter. Her supporters also include her former students, including one, 
a former law clerk to Justice Antonin Scalia, who called Solicitor 
Kagan, ``a person of utmost integrity, extraordinary legal talent and 
relentless generosity.''
  Solicitor Kagan's intellectual aptitude and commitment to justice was 
demonstrated early in her life. She was born in New York City, NY, the 
daughter of a school teacher and a public housing lawyer. She graduated 
from Princeton University, received a Masters in Philosophy from 
Worcestor College of Oxford University, and received her law degree 
magna cum laude from Harvard Law School. She then clerked for Justice 
Thurgood Marshall, was an associate with Williams & Connolly, and then 
counsel to President Clinton, as Associate Counsel, Deputy Assistant to 
the President for Domestic Policy, and Deputy Director for the Domestic 
Policy Counsel. She led the Clinton administration's inter-agency 
effort to analyze all legal and regulatory aspects of the Attorney 
General's tobacco settlement and then participated actively in the 
development and congressional consideration of tobacco legislation. She 
also handled legislative issues involving constitutional issues, 
including separation of powers, governmental privileges, freedom of 
expression, and church-state relations.
  As Dean of Harvard Law School, she joined other deans in opposing an 
amendment to strip the courts of the power to review detention 
practices, treatment and adjudications of guilt and punishment for 
detainees at Guantanamo Bay, Cuba. This reflects a fair view, with an 
eye to checks and balances on different branches of government.
  In her first case as Solicitor General, Solicitor Kagan argued before 
the Supreme Court on behalf of the government in the Citizens United v. 
FEC case. As Solicitor Kagan notes, however, her role as Solicitor 
General was to argue on behalf of the country, not to advance her 
personal beliefs.
  In my meeting with her, Solicitor Kagan confirmed her commitment to 
protecting the right to privacy enshrined in our Constitution. I 
believe she will preserve that right.
  Solicitor Kagan is uniquely qualified to serve as Associate Justice 
because she not only possesses an impressive intellectual capacity and 
commitment to fairness, but also because she is committed equal 
justice. As she remarked in her opening statement, ``Equal Justice 
under the Law. It means that everyone who comes before the Court--
regardless of wealth or power or station--receives the same process and 
the same protections . . .''
  Solicitor Kagan demonstrates a readiness to serve on our Nation's 
Highest Court and I am confident that she will make a fine justice who 
will not only uphold the Constitution and legal precedent of the 
country, but continue to preserve one of the most treasured tenets of 
our legal system, equal access to justice for all Americans.
  Mr. LEVIN. Mr. President, earlier this week I spoke on the Senate 
floor, calling for the confirmation of Solicitor General Elena Kagan to 
the position of Associate Justice of the Supreme Court. I added my 
voice to a chorus of bipartisan praise for her qualifications and 
abilities to be a Supreme Court Justice, joining supporters such as 
Miguel Estrada, Assistant Solicitor General in the George H.W. Bush 
administration; former Solicitors General Kenneth Starr and Drew S. 
Days and a number of my Republican colleagues, including Senator 
Lindsey Graham and Senator Judd Gregg. These voices across the 
political spectrum recognize Elena Kagan's years of practical, 
pragmatic experience, and value, in the words of Professor Michael 
McConnell, director of the Constitutional Law Center at Stanford Law 
School, her ``fidelity to legal principle even when it means crossing 
her political and ideological allies.''
  Despite her abilities and her tremendous legal career, Solicitor 
General Kagan continues to be the subject of baseless attacks. For 
instance, the National Rifle Association, NRA, has taken out full page 
advertisements in multiple newspapers and has aired national television 
commercials claiming Elena Kagan is unfit for the Supreme Court because 
of her supposed opposition to the second amendment rights of Americans. 
The NRA's charges are unfounded and are refuted by the nominee's own 
words during her confirmation hearing before the Senate Judiciary 
Committee.
  For example, in regard to the Supreme Court's 2008 Heller decision, 
which ruled that the second amendment protects an individual's right to 
possess a firearm for private self-defense purposes in a Federal 
enclave, and the Supreme Court's recent McDonald decision, which 
applied the Heller holding to the States, the NRA has said that 
Solicitor General Kagan has left unanswered ``very serious questions of 
whether she would vote to overturn Heller and McDonald.'' Perhaps the 
NRA lobbyists were not watching her confirmation hearing when she 
replied to a question from Senator Tom Coburn saying, ``I very much 
appreciate how deeply important the right to bear arms is to millions 
and millions of Americans. And I accept Heller which made clear that 
the second amendment conferred that right upon individuals, and not 
simply collectively.'' In addition, in response to a related question 
from Senator Charles Grassley, Solicitor General Kagan said ``those 
decisions are settled law . . . I will follow stare decisis with 
respect to Heller and McDonald as I would with any case.''
  It seems pretty clear, contrary to the NRA's claims, that Solicitor 
Kagan has answered questions concerning her position on the second 
amendment rights of Americans, and she will defend those rights.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. 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. REID. I ask unanimous consent that there now be 1 hour remaining 
for debate with respect to the Kagan nomination for the U.S. Supreme 
Court, with 15-minute blocks controlled as follows: Senator Sessions, 
Chairman Leahy, Leader McConnell, and Senator Reid of Nevada; that upon 
the use of the allotted hour, the Senate proceed to vote on 
confirmation of the nomination; that upon confirmation, the motion to 
reconsider be considered made and laid on the table, the President be 
immediately notified of Senate's action, and the Senate then resume 
legislative session. Further, I ask

[[Page 15235]]

that when Members cast a vote on the nomination, they do so from their 
seats.
  The PRESIDING OFFICER. Is there objection?
  Mr. REID. Will the Chair withhold please, Mr. President.
  You have heard my request. What is the ruling of the Chair?
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, at 3:30 today we will vote on the nomination 
of Elena Kagan to be an Associate Justice on the Supreme Court.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, in the midst of President Johnson's 
``Great Society,'' Ronald Reagan explained that our Nation had arrived 
at a crossroads, at a time for choosing.
  The choice, Reagan explained, was ``whether we believe in our 
capacity for self-government or whether we abandon the American 
Revolution and confess that a little intellectual elite in a far-
distant capital can plan our lives for us better than we can plan it 
for ourselves.''
  Forty years later, our Nation once again finds itself at a 
crossroads. Government is getting larger and larger. Spending is out of 
control, and a little intellectual elite, in a far distant capital, is 
trying harder than ever to plan the lives of the American people. Even 
basic choices about how we care for our own health are now made by 
career bureaucrats whose names Americans will never hear and whose 
faces they will never see.
  Our Nation has a choice to make. We either restore or relinquish our 
great heritage of limited constitutional government. Part of that 
choice will be made here today. Part of that choice will be made as we 
consider the nomination of Elena Kagan to the Supreme Court. In recent 
years, the progressive wing of the Supreme Court has offered opinions 
that would have denied Americans their right to keep and bear arms, and 
severely diminish the right to free speech during election time.
  These same progressive Justices succeeded only a short time ago in 
ruling that a citizen's property could be seized by the State for 
private commercial development. These Justices are ignoring the text of 
our Constitution, the plain rights guaranteed by our Constitution, in 
order to advance what they think are better ideas, their vision, their 
political agendas, frankly.
  This progressive, activist judicial philosophy strikes at the heart 
of our democracy and is a direct threat to our liberty. Judges are 
lifetime appointed. They are not accountable to the people. President 
Obama himself has said that judges must shed their neutral 
constitutional role and impose upon the nation ``their broader vision 
of what America should be.'' That is how he said he would pick judges, 
and this is certainly the kind of judge President Obama believes he has 
found in Ms. Kagan, someone who shares his progressive, elitist vision 
and is willing to advance it from the bench.
  Indeed, throughout Ms. Kagan's career, she has been more deeply 
involved in politics than law, and has frequently put her politics 
above law. She has never been a judge, never argued even a case before 
a jury. She has practiced law for 3 years. She has less real legal 
experience than any nominee in the last half century.
  The experience Ms. Kagan does have, however, is mostly that of a 
political lawyer and a policy advocate, and whenever her political 
views have clashed with her legal obligations, her vision of what 
America should be and not her duty have too often won the day.
  As a Supreme Court clerk she pursued a progressive agenda without 
regard to the Constitution's text or history. She even wrote she was 
not sympathetic to an American's constitutional right to keep and bear 
arms. As a top aide to President Clinton she was closely involved in 
efforts to restrict private gun ownership, including a plan to block 
firearm importation into our country that one Clinton official admitted 
was ``taking the law and bending it as far as we can.''
  She also worked aggressively to ensure the wide availability of 
partial-birth abortion. Instead of providing President Clinton with 
sound legal advice based on the best medical evidence, she pushed the 
President away from his moderate position, and away from his 
willingness to reach a compromise on this issue. She even helped revise 
a medical statement to imply a medical need for the gruesome partial-
birth abortion procedure that did not exist, when the expert panel had 
indeed said it was never an appropriate procedure.
  Next, as dean of Harvard Law, Ms. Kagan would once again sacrifice 
legal principle for political gain for advancement of an agenda she 
believed in. Ms. Kagan inherited a policy of equal and unfettered 
access for military recruiters on campus. That was the policy. But she 
reversed this policy, kicking the military out of the campus 
recruitment office as our troops at that very time were risking their 
lives overseas. She did this in clear, knowing violation of Federal 
law, the Solomon amendment. The Solomon amendment, passed by this 
Congress four times, requires unrestricted, equal access on campuses 
for military recruiters. Ms. Kagan knew what the law said, and as she 
herself admitted, knew that it was in force every single day she was 
dean. But she put her own views, her political ideas, her ideologies 
above the law and above the best interests of our soldiers, stripping 
the military of their official access availability on campus.
  Ms. Kagan justified this conduct by saying she was objecting to don't 
ask, don't tell. That statute, however, was passed by Congress and 
implemented by President Clinton, her former boss. But instead of 
complaining to the politicians who made the rule, to those of us in 
Congress who were involved in passing it and maintaining it, working 
within the democratic system, Ms. Kagan took it upon herself to defy 
the law and to demean the people who were merely following the law, our 
noble men and women who serve our country.
  Perhaps some of those on that campus recruiting had just come off the 
battlefield, having served their country, placing their lives at risk. 
For that there can be no justification.
  After Harvard, Ms. Kagan assumed the post of Solicitor General of the 
United States. In that job it is her sworn duty to defend all Federal 
laws, including those she may personally oppose. These are the laws of 
Congress which the Solicitor General must defend. As every good lawyer 
knows, her job is to represent her clients, and the client of the 
Solicitor General is the United States of America.
  Did she fulfill that duty? Did she faithfully represent her client? 
No, she did not. When the liberal Ninth Circuit issued a deeply flawed 
ruling against don't ask, don't tell, the law Ms. Kagan had so strongly 
opposed at Harvard, she did not appeal the ruling, despite great 
chances of success on appeal to the Supreme Court. Instead, she did 
exactly what the ACLU, the group who was leading the fight in 
representing the individual in that lawsuit, who opposed the statute 
and wanted it stricken, she did what they desired and let the ruling 
stand, and missed the opportunity to get a clear appeal. This was a 
test of Ms. Kagan's legal character, and she failed that test. I 
studied the case closely. I want to be fair to her about that.
  The only explanation for her not appealing to the Supreme Court was 
that she did not want them to uphold the statute to win a victory for 
the United States. In short, she did not fulfill her duty. Her duty. Is 
that a word that is out of fashion today? And she did not live up to 
her explicit, sworn promise made to this Senate, to vigorously defend 
that very statute, when she was confirmed to be Solicitor General.
  Given this record, it is not surprising that Ms. Kagan's judicial 
heroes are activists who reject and repudiate sometimes even the very 
idea of objectivity. But it is objectivity, the search for what is 
right and true, that makes our system of justice so extraordinary and 
so unique. The whole goal of our trials is to find the truth. These 
concerns were addressed during the hearing. Ms. Kagan was given every 
opportunity to respond. But she opted, I thought, for political spin at 
the expense of rigorous honesty and accuracy. In so doing, she

[[Page 15236]]

only further demonstrated she lacked the qualities necessary to sit on 
the Court. Other Senators have the same impression of that testimony.
  Some have said that Senators are opposing this nomination for 
partisan reasons, that her qualifications are not in question. But what 
qualification is more essential for the Supreme Court than impartial 
fidelity to the law? This is not an ideological litmus test but a core 
bipartisan standard to which any nominee of any party ought to be held.
  Senators can and will disagree on the question of how much deference 
a President is due in his nomination. But surely that deference cannot 
extend so far as to include a nominee who is unable to serve under the 
Constitution as they take an oath to do.
  The American people will not easily forgive the Senate if we confirm 
Ms. Kagan to the Supreme Court. They will not forgive the Senate if we 
further expose our Constitution to revision and rewrite by judicial 
fiat, to advance what President Obama says is a broader vision of what 
America should be. That is the Congressional role, not the judicial 
role, to figure out what the vision and the policy of this country 
should be.
  Now more than ever we need this Court to be an impartial defender of 
our constitutional liberty. As Vice President Biden's own chief of 
staff and close friend of Ms. Kagan emphatically said, ``Ms. Kagan is 
clearly a legal progressive.'' If confirmed, I fear she will continue 
putting her politics above the law, as she has so often done before. So 
I invited those who supported this nomination to refute the record and 
the analysis I have stated over the several past weeks, but I do not 
think one error has been raised and identified by Ms. Kagan's 
supporters in what I have said.
  So we are left with the same concern, that Ms. Kagan would ally 
herself not with the constitutional liberties of all Americans but with 
the big government agenda of the President who nominated her. In fact, 
at the hearing, Ms. Kagan was unable to identify any limits on the 
government's power to control America's economic decisions. What Ms. 
Kagan perhaps fails to realize is that the people should control their 
government, not the other way around.
  That is why no Supreme Court Justice should simply rubberstamp any 
political agenda of a President or Congress, nor should any Senator. 
Our liberties are far more precious than any partisan allegiance.
  After the Constitution was drafted, Benjamin Franklin was asked what 
kind of government had been created. Franklin replied: A republic, if 
you can keep it. Again, the choice is ours. Either we embrace our 
great, magnificent constitutional heritage that I love so much or we 
let it slip away to judges who believe they can allow their own 
personal core beliefs and philosophies to help them decide how a case 
should go. Either we move forward more secure in our freedom or we fall 
back to the old bankrupt idea of big government--an idea that has 
failed at every place, every time it has been tried.
  Let's take a step today in the right direction. Let's listen to the 
American people and strengthen our commitment to constitutional values. 
It is that commitment that impels me to vote against this nomination 
and why I urge my colleagues in both parties to do the same.
  I see the chairman of the committee, Senator Leahy. He and I don't 
agree on this nomination, but he is a proven professional chairman. He 
has gone through a host of these nominations. He is tough, but he is 
fair. He let us have our say. I thank the chairman for the privilege of 
working with him on this important constitutional effort.
  The PRESIDING OFFICER (Mr. Franken). The Senator from Vermont is 
recognized.
  Mr. LEAHY. Mr. President, I thank the Senator from Alabama for his 
kind words. We both set out with the goal of making sure the United 
States had a chance to hear this nomination, to hear the debate on it, 
and to have Senators speak. We both decided before the debate that 
would happen, and it has. I thank the Senator from Alabama.
  We are about to conclude debate on the nomination of Elena Kagan to 
be Associate Justice of the U.S. Supreme Court. This is the time when 
the 100 of us stand in the footsteps of 300 million Americans and make 
the decision whether she will be confirmed to a lifetime appointment. I 
predict right now she will be confirmed and I look forward to her 
bipartisan confirmation.
  She has been nominated to succeed Justice John Paul Stevens, someone 
who served with integrity for so many years, a man I consider a friend. 
Her qualifications, intelligence, temperament, and judgment will make 
her a worthy successor to Justice John Paul Stevens.
  When she is appointed by the President after we confirm her, three 
women will serve together on the Supreme Court of the United States for 
the first time in our Nation's history, three women on the nine-member 
Supreme Court. As I said 5\1/2\ weeks ago, when the Judiciary Committee 
began Solicitor General Kagan's confirmation hearing, we are a better 
country for the fact that the path of excellence Elena Kagan has taken 
in her career is one now open for both men and women. I look forward to 
the day when I see many more women on that Court.
  Solicitor General Kagan's legal qualifications are unassailable. She 
earned her place at the top of the legal profession. No one gave it to 
her; she earned it. As a student, she excelled at Princeton, Oxford and 
Harvard Law School. She was a law clerk to a giant in American justice 
and American law, Justice Thurgood Marshall. She worked for then-
Chairman Biden on the Judiciary Committee. These experiences, combined 
with her work as an advisor to President Clinton, give her background 
in all three branches of our government. She also taught law at two of 
the Nation's most respected law schools. In the decade since the 
Republican Senate majority pocket-filibustered her nomination to the DC 
Circuit--remember, when people say she does not have judicial 
experience, of course, Republicans did block her from going on the 
court--Elena Kagan became the first woman dean of Harvard Law School 
and then the first woman Solicitor General of the United States, often 
referred to as the 10th Justice.
  The 100 of us who serve in the U.S. Senate stand in the shoes of more 
than 300 million Americans as we discharge this constitutional duty to 
consider nominations to our Nation's Federal courts. We will conclude 
our consideration of this nomination after 12 weeks. If we can do that 
for a Supreme Court nomination, we ought to be able to consider the 
other judicial nominations that have been stalled for months after 
being favorably reported by the Judiciary Committee.
  This is the 15th time since I have been in the Senate that I have 
been able to consider a Supreme Court nomination. I have applied the 
same standards to this nomination as I have to the ones that preceded 
it. I looked to see whether Solicitor General Kagan would fairly apply 
the law and use common sense. That is the same standard I used on the 
first Supreme Court Justice I voted on, a man from Chicago, Justice 
John Paul Stevens, nominated by a Republican President. I proudly voted 
for him. For Solicitor General Kagan, I looked to see whether, as a 
Justice, she would appreciate the proper role of the courts in our 
democracy. Would she be the kind of independent Justice who would keep 
faith with each of the words inscribed in Vermont marble over the front 
doors to the Supreme Court: ``Equal justice under law.'' My answer to 
these questions, based on her record and testimony, is a resounding 
yes.
  Solicitor General Kagan demonstrated an impressive knowledge of the 
law and fidelity to it. She spoke of judicial restraint and respect for 
our democratic institutions, her commitment to the Constitution and the 
rule of law. She made clear that she will base her approach to deciding 
cases on the law and the Constitution, not politics or an ideological 
agenda. So today I will cast my vote for Elena Kagan's confirmation.
  I observed at the outset of this confirmation process that there was 
no one President Obama could nominate who would not be opposed by some.

[[Page 15237]]

Some Senators announced their opposition to Solicitor General Kagan's 
nomination even before a hearing took place. The opening statement of 
others at the Judiciary Committee hearings struck me more like 
prosecutors' closing arguments. Senators who last year disregarded 
Justice Sotomayor's years of judicial service to focus on a few phrases 
taken out of context from her speeches reversed their course this year 
to proclaim that an extensive judicial record is imperative. Standards 
shift almost every time. They then faulted Solicitor General Kagan for 
not having been a judge, while ignoring the fact that it was Senate 
Republicans who pocket-filibustered her judicial nomination more than 
10 years ago.
  Senators can make their own judgments, and they have. I ask of them 
only two things: Fairly consider Solicitor General Kagan's testimony 
and adhere to the standards of fairness and objectivity that you are 
demanding of her as a Justice. History will judge whether Senators have 
fairly considered the nomination of Solicitor General Kagan. I commend 
those Senators who have shown the independence to join the bipartisan 
confirmation of this nomination.
  I also defend the right of every Senator to vote as he or she 
chooses. I understand that some statements made in opposition to this 
nomination were seen as insulting to the nominee and to others. I 
disagree with the many inferences, conclusions and judgments expressed 
in opposition, but I do not think Senators intended their remarks to be 
disparaging.
  Five years ago, I followed the Democratic leader's statement in 
opposition to the nomination of John Roberts with my statement in favor 
of that nomination. That was my judgment based on the record and his 
testimony, including his pronouncements on judicial restraint, 
deference to Congress, and respect for precedent. At the time, Senators 
on the Democratic side of the aisle--a number of them--disagreed with 
me, including one Senator who disagreed with me but, nevertheless, came 
to the floor to defend my position. That Senator was the then-junior 
Senator from Illinois. Of course, he now serves as President of the 
United States. As I told President Obama the other day, his defense of 
me meant a lot then, and 5 years later, it still does.
  In the course of our consideration of this nomination, I have spoken 
several times about the key role real world judging and judicial 
independence have played in furthering the Constitution's purpose of 
forming a more perfect union. It is essential that judicial nominees 
understand that, as judges, they are not members of any administration. 
I believe Solicitor General Kagan has that understanding. Courts are 
not subsidiaries of any political party or interest group, and our 
judges should not be partisans. That is why the Supreme Court's 
intervention in the 2000 Presidential election in Bush v. Gore was so 
jarring and why the recent decision by five conservative activist 
Justices in Citizens United to throw out 100 years of legal 
developments in order to invite massive corporate spending on elections 
for the first time in 100 years was such a jolt to the system.
  It is also essential that judges and Justices understand how the law 
affects Americans each and every day. I expect Elena Kagan learned 
early on in her legal career, when she clerked for Justice Marshall, 
that Justices ought to understand how their decisions affect real 
Americans. In the hard cases that come before the Supreme Court, in the 
real world, we want and need Justices who have the good sense to 
appreciate the real world ramifications of their decisions. The 
American people live in the real world of great challenges. The Supreme 
Court needs to function in that real world.
  It took a Supreme Court that, in 1954, understood the real world to 
conclude in Brown v. Board of Education that the seemingly fair 
sounding doctrine of separate but equal was in reality a straitjacket 
of inequality and inconsistent with the constitutional guarantee of 
equality. It took a Supreme Court 75 years ago that understood the real 
world and the Great Depression to reject conservative judicial activism 
to accept the constitutional authority of Congress to outlaw child 
labor, to guarantee a minimum wage, and to establish a social safety 
net for all Americans. Through Social Security, Medicare and Medicaid, 
Congress ensured that growing old no longer means growing poor and that 
being older or poor no longer means being without medical care. That 
progress continues today with our efforts to pass laws to ensure 
protection from natural and manmade disasters, to encourage clean air 
and water, to provide health care for all Americans, to ensure safe 
food and drugs, to protect equal rights, to enforce safe workplaces and 
provide a safety net for seniors.
  Vermont did not vote to join the Union until the year the Bill of 
Rights was ratified. Those of us from the Green Mountain State are 
protective of our fundamental liberties. Vermonters understand the 
importance the Constitution, including the Bill of Rights and the 
subsequent constitutional amendments have had in expanding individual 
liberties over the last 220 years. I believe Solicitor General Kagan 
shares this understanding. As she said in her opening statement at the 
hearing:

       What the rule of law does is nothing less than to secure 
     for each of us what our Constitution calls ``the blessings of 
     liberty''--those rights and freedoms, that promise of 
     equality, that have defined this nation since its founding.

  All of us are better for our historic progress to greater freedom, 
equality, and security.
  Every February, the Senate hears President George Washington's 
Farewell Address. It is usually read by the Senate's most junior 
Member. In that pronouncement by our first President, George Washington 
warns against the danger of factions, partisanship, and what he called 
``the spirit of party,'' noting:

       [T]he common and continual mischiefs of the spirit of party 
     are sufficient to make it the interest and duty of a wise 
     people to discourage and restrain it.
       It serves always to distract the Public Councils, and 
     enfeeble the Public Administration. It agitates the Community 
     with ill-founded jealousies and public alarms; kindles the 
     animosity of one part against another, foments occasionally 
     riot and insurrection.

  That was George Washington, a long time ago. But today our Nation 
faces many challenges. It is a time when we should be pulling together 
and working together. Instead, we have seen too much obstruction, 
negativity, and devotion to the failure of the other party instead of 
the success of the country.
  The nomination of Solicitor General Elena Kagan is a matter on which 
I expect the President had hoped we would come together. Her nomination 
really is one worthy of broad bipartisan support.
  With Elena Kagan's confirmation, the Supreme Court will better 
reflect the diversity that has made our country so great. We will write 
another chapter in the history of our Nation's highest Court. And we 
will take another step forward in fulfilling the hopes and dreams of 
the trailblazers who set the path for Elena Kagan to follow.
  I will proudly vote for her confirmation.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SESSIONS. 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. SESSIONS. Mr. President, I would like to express my appreciation 
to my staff who worked tirelessly during these past few months on this 
nomination. They spent many long hours combing through and distilling 
information in hundreds of thousands of documents provided by Solicitor 
General Kagan, the Clinton Library and the Pentagon. On a short 
timeline, my staff worked around the clock to prepare for the hearing 
before the Judiciary Committee, which occurred merely 49 days after 
President Obama announced Solicitor General Kagan's nomination to the 
Supreme Court. Because of their hard work and dedication, our members 
were well-prepared

[[Page 15238]]

and well-informed, which allowed us to conduct a fair and thorough 
hearing.
  Mr. President, I would like to thank my staff and Senator Leahy's 
staff, the Judiciary Committee staff, for their fine work during this 
nomination process. It has gone on for a number of weeks, and it has 
been very stressful, with a lot of late nights, and people really have 
worked hard. I believe that has provided us with good and accurate 
information.
  I particularly would like to express my appreciation to my staff 
director, Brian Benczkowski, on whom I have relied repeatedly through 
this process, for his good judgment and wise counsel, his integrity and 
experience as we have dealt with this difficult challenge. I would also 
note my chief counsel for nominations, Danielle Cutrona, who has also 
worked exceedingly hard, as well as my deputy staff director, Matt 
Miner.
  I would like to acknowledge and thank the other hard-working and 
talented lawyers on my permanent staff who worked on this nomination, 
including William Smith, Ted Lehman, Bill Hall, Mark Patton, John 
Ellis, and Kimberly Kilpatrick.
  I would also like to extend my appreciation to the talented lawyers 
who joined my staff as Special Counsels specifically to work on this 
nomination, including Ralph Johnson, Jason Tompkins, and Susanna 
Dokupil. And I would be remiss if I did not mention the efforts of our 
Law Clerks, two of whom dedicated their time while studying for the bar 
exam, including Amanda Lavis, Ed Liva, and Taylor-Lee Wickersham.
  I would also like to acknowledge our dedicated support staff: Lauren 
Pastarnack, Sarah Thompson, Andrew Bennion, Allison Busbee, Kate 
Laborde, and Ivy Williams.
  Finally, I cannot overstate the important work done by our press 
team. My Communications Director Stephen Boyd, Press Secretaries Sarah 
Haley and Stephen Miller, and Press Assistant Andrew Logan have worked 
tirelessly throughout this process.
  All of these individuals shouldered the brunt of this enormous task, 
working late hours and through weekends and holidays. They deserve our 
recognition for their hard work, professionalism, and dedication to 
public service.
  I would also like to thank the other talented lawyers on my staff 
who, among others I have just mentioned, handled the regular 
legislative business that came before the Judiciary Committee during 
this process: Joe Matal, Bradley Hayes, and Sam Ramer.
  And let me express my gratitude to the Republican Leader and his 
staff, specifically John Abegg, Josh Holmes, and Webber Steinhoff; 
along with Republican Policy Committee Counsel Gregg Nunziata who 
provided invaluable assistance to my staff.
  I'd also like to express my thanks to Chairman Leahy for his work on 
this nomination. We didn't always agree on everything, but he was 
respectful of Republicans' rights during this process and he conducted 
a fair and thorough hearing. He would not have been able to do that 
without the help of his staff, including his Staff Director and Chief 
Counsel Bruce Cohen and his Chief Nominations Counsel Jeremy Paris.
  Finally, I would like to thank the Judiciary Committee's Chief Clerk, 
Roslyne Turner and her assistant, Erin O'Neill.
  Every one of these talented staff members contributed to this 
process, and their dedication and hard work helped us conduct a fair 
and thorough hearing. I extend my heartfelt thanks to each of them. We 
could not have fulfilled our Constitutional duty of Advice and Consent 
without them.
  Mr. President, there are in the hearing nine letters in opposition to 
the nomination of Elena Kagan to be Associate Justice of the Supreme 
Court from Gonzalo Vergara, Lt. Col., USAF (Ret); the Judicial Action 
Group; National Right to Life Committee; Military Families United; the 
Liberty Counsel; The Ethics & Religious Liberty Commission of the 
Southern Baptist Convention; the American Association of Christian 
Schools; the Center for Military Readiness; and the National Rifle 
Association of America.
  I ask unanimous consent to have printed in the Record four letters 
from the National Right to Work Committee; the American Conservative 
Union; C. Everett Koop, former U.S. Surgeon General, and the Ethics & 
Religious Liberty Commission of the Southern Baptist Convention.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                 National Right to


                                               Work Committee,

                                    Springfield, VA, July 1, 2010.
     U.S. Senate,
     Washington, DC.
       Dear Senator: On behalf of the over 2.6 million members of 
     the National Right to Work Committee, I strongly urge you to 
     vote against confirmation of Elena Kagan for a lifetime seat 
     on the United States Supreme Court. Her record as an high-
     level White House advisor to President William Jefferson 
     Clinton demonstrates that her views about the First-Amendment 
     and statutory rights of American workers are far outside the 
     judicial mainstream.
       In 1976, in Abood v. Detroit Board of Education, a case in 
     which National Right to Work Legal Defense Foundation 
     attorneys represented the plaintiff, public school teachers, 
     the U.S. Supreme Court considered whether nonunion public 
     employees can constitutionally be compelled as a condition of 
     employment to subsidize their union monopoly bargaining 
     agent's political activities. The Court, unanimously, held 
     ``that a State cannot constitutionally compel public 
     employees to contribute to union political activities which 
     they oppose.''
       The First-Amendment right of workers not to be forced to 
     subsidize union politics, first recognized in Abood, has been 
     reaffirmed by the Supreme Court in several subsequent cases 
     brought to the Court for workers by National Right to Work 
     Legal Defense Foundation attorneys, cases such as Ellis v. 
     Railway Clerks (1984), Teachers Local 1 v. Hudson (1986), 
     Lehnert v. Ferris Faculty Ass'n (1991), and Davenport v. 
     Washington Education Ass'n (2007).
       The Court's Abood ruling relied on the principle underlying 
     the Supreme Court's 1976 decision about the Federal Election 
     Campaign Act in Buckley v. Valeo, that ``contributing to an 
     organization for the purpose of spreading a political message 
     is protected by the First Amendment.'' The Court has 
     reiterated that principle repeatedly, and relied upon it 
     again as recently as this year in Citizens United v. Federal 
     Election Commission.
       However, in 1996, when she was Associate Counsel to 
     President Clinton, Ms. Kagan rejected this long, unbroken 
     line of Supreme Court precedent that protects the First-
     Amendment right of public employees--and of Americans 
     generally--not to be compelled by government to subsidize 
     political activities of private, voluntary associations.
       In an e-mail message on October 31, 1996, to Paul J. 
     Weinstein, Jr., Chief of Staff of the White House Domestic 
     Policy Council, Ms. Kagan said (emphasis added):
       It is unfortunately true that almost any meaningful 
     campaign finance reform proposal raises constitutional 
     issues. This is a result of the Supreme Court's view--which I 
     believe to be mistaken in many cases--that money is speech 
     and that attempts to limit the influence of money on our 
     political system therefore raise First Amendment problems . . 
     . I also think the Court should reexamine its premise that 
     the freedom of speech guaranteed by the First Amendment 
     entails a right to throw money at the political system.
       In her Senate Judiciary Committee testimony on June 29, 
     2010, Ms. Kagan claimed in answer to a question from Senator 
     Orrin Hatch that these were merely the Clinton 
     Administration's, not her personal, views.
       However, later, on October 31, 1996, Ms. Kagan was one of 
     several White House staff members whose memorandum 
     recommending how the White House should respond to questions 
     about President Clinton's ``Campaign Finance Reform 
     Announcement'' was transmitted to White House Chief of Staff 
     Leon Panetta. That memo from Ms. Kagan and others 
     incorporated Ms. Kagan's argument that the First Amendment 
     does not protect the right to spend money for political 
     activities. In short, in 1996 Ms. Kagan both suggested and 
     endorsed that crabbed view of the. First Amendment.
       Thus, Ms. Kagan's testimony this week before the Senate 
     Judiciary Committee clearly is disingenuous. It is reasonable 
     to conclude from her record that, if confirmed, Ms. Kagan 
     would be willing to overrule Abood's well-established 
     protection of the constitutional right of workers not to be 
     forced to subsidize union politics.
       This conclusion is supported by other documents the Clinton 
     Presidential Library recently produced for the Senate 
     Judiciary Committee in preparation for its hearings on Ms. 
     Kagan's Supreme Court nomination.
       On November 14, 1996, Ms. Kagan sent a memorandum on White 
     House stationery to then White House Counsel Jack Quinn and 
     then Deputy White House Counsel Kathleen Wallman about a 
     draft ``memo to the President on campaign finance.'' In her 
     memo, Ms. Kagan said:

[[Page 15239]]

       The memo does not address what seems to me the key issue in 
     developing a strategy on campaign finance legislation: how to 
     deal with Republican efforts to restrict labor union 
     spending. I think the Republicans will insist on including in 
     any campaign finance legislation a provision making it 
     difficult for unions to use money from compulsory union dues 
     in political campaigns. . . . We should start thinking now 
     how we're going to deal with this Republican poison pill.
       In 1988, of course, in Communications Workers v. Beck, yet 
     another case in which National Right to Work Legal Defense 
     Foundation attorneys represented the plaintiff workers, the 
     Supreme Court had already held that the National Labor 
     Relations Act--like the First Amendment--prohibits unions 
     from using compulsory union dues of objecting workers in 
     political campaigns. Thus, any provision that would make ``it 
     more difficult for unions to use money from compulsory union 
     dues in political campaigns'' would simply protect a 
     constitutional and statutory right of workers recognized by 
     the Court in the Abood line of cases and in Beck.
       Ms. Kagan nonetheless subsequently recommended that 
     President Clinton oppose any legislation protecting the right 
     of workers not to be forced to subsidize union politics, 
     despite the First Amendment's guarantee of that basic worker 
     freedom of speech and association.
       On February 12, 1997, Kathleen Wallman, then Deputy 
     Assistant to the President for Economic Policy, circulated an 
     11:30 a.m. draft memorandum for the President on possible 
     policy announcements of labor issues that the Vice President 
     could make at a meeting of the AFL-CIO's Executive Committee 
     later that month. The draft indicates that Ms. Kagan, by then 
     Deputy Assistant to the President for Domestic Policy, was 
     writing two sections of the memo that were not included in 
     the draft. One of those sections that Ms. Kagan ``agreed to 
     draft'' concerned the Administration's ``[p]osition on Beck 
     legislation aimed at limiting the use of union dues in 
     political activity.''
       Later that same day, Ms. Kagan e-mailed Ms. Wallman her 
     recommendation about ``legislation aimed at limiting the use 
     of union dues in political activity'' (italics added): John 
     Hilley [Director of Legislative Affairs], Bruce Reed 
     [Director of the Domestic Policy Council], and I all 
     recommend that you state strong opposition to Beck 
     legislation, no matter what it is attached to.''
       In sum, as a high-level White House official Ms. Kagan both 
     disagreed with the well-established legal principle that 
     underlies the long line of Supreme Court decisions 
     recognizing the constitutional right of workers not to be 
     compelled to subsidize union political activities as a 
     condition of employment and opposed any legislation designed 
     to protect that fundamental right of free speech and free 
     association. This puts her far outside the judicial 
     mainstream and demonstrates a disdain for the rights of 
     independent-minded American workers.
       Consequently, on behalf of the National Right to Work 
     Committee's over 2.6 million members, I strongly urge you to 
     vote NO on confirmation of Ms. Kagan's nomination to the 
     Supreme Court.
           Respectfully,

     Mark A. Mix.
                                  ____


       Dear Senator: On behalf of the American Conservative Union, 
     I strongly urge you to vote ``NO'' on the confirmation of 
     Elena Kagan to the U.S. Supreme Court.
       Elena Kagan's entire career is more suited to that of a 
     political activist than a legal scholar, as she has been 
     described by President Obama and as she described herself in 
     her testimony. Kagan began public life as a political 
     operative for the U.S. Senate campaign of Elizabeth Holtzman 
     of New York in 1980. The documents produced for the Judiciary 
     Committee show that, as a member of the Clinton 
     Administration's Justice Department, Kagan's primary role was 
     to develop political strategy in dealing with the Congress on 
     legal issues. A good example of this is when the issue of 
     partial birth abortion came before the Senate during the 
     Clinton administration. At this time Kagan proceeded to 
     negotiate changes to a statement by the American Council of 
     Obstetricians and Gynecologists (ACOG) that said there were 
     no serious medical reasons for conducting a partial birth 
     abortion. Kagan's involvement made it more difficult for the 
     Senate to pass a ban on partial birth abortion. This example 
     clearly displays that Kagan is more of a political operative 
     than a legal scholar.
       Another serious impediment to Kagan's nomination is her 
     deep involvement as the Obama Administration's Solicitor 
     General on issues that will continue to come before the 
     Supreme Court. This may mean that Kagan will or should have 
     to recuse herself from key decisions of the court. As 
     outlined in a letter from Republican members of the Committee 
     on July 13 to Kagan, there is even a question as to whether 
     recusal will be an issue when the constitutionality of the 
     recently passed health care bill comes before the court.
       Kagan has also shown herself willing to ignore the law for 
     political purposes. As Dean of the Harvard Law School, Kagan 
     banned military recruiters on campus in violation of the 
     Solomon Act to satisfy campus activists. Her actions were 
     voided by a unanimous 8-0 decision of the very court on which 
     she has been nominated to serve.
       Although through the mid-twentieth century, court 
     appointments of politicians were sometimes made to satisfy 
     political deals, such as the appointment of Earl Warren in 
     the 1950s, in recent years judicial experience and legal 
     background have been at the forefront of nominations. The 
     nomination of Elena Kagan is more akin to President Lyndon 
     Johnson's nomination of political crony Abe Fortas as Chief 
     Justice, which had to be withdrawn.
       It was President Obama, as a U.S. Senator, who changed the 
     criteria for judges from minimum qualifications to judicial 
     philosophy and more subjective criteria. The nomination of 
     Elena Kagan is a blatant attempt to place on the court a 
     political operative who will work as an advocate of 
     Administration policies rather than look at rulings from an 
     objective view of constitutionality. Please vote ``NO'' in 
     the confirmation of Elena Kagan.
           Sincerely,

                                                   Larry Hart,

                                 Director of Government Relations,
     The American Conservative Union.
                                  ____

       An Open Letter to the American People: For many years, 
     before, during and after my service as surgeon general of the 
     United States, I've been known for presenting my unvarnished 
     opinion on medical matters, regardless of the views of 
     political parties or outside influences. The time has come 
     for me to do so again.
       I was deeply disturbed to learn that Elena Kagan, the 
     nominee for Supreme Court scheduled for a Senate committee 
     vote next week, manipulated the medical policy statement on 
     partial-birth abortion of a major medical organization, the 
     American College of Obstetricians and Gynecologists (ACOG) in 
     January 1997.
       The problem for me, as a physician, is that she was willing 
     to replace a medical statement with a political statement 
     that was not supported by any existing medical data. During 
     the partial-birth abortion debate in the 1990s, medical 
     evidence was of paramount importance.
       Ms. Kagan's amendment to the ACOG Policy Statement--that 
     partial-birth abortion ``may be the best or most appropriate 
     procedure in a particular circumstance to save the life or 
     preserve the health of a woman''--had no basis in published 
     medical studies or data. No published medical data supported 
     her amendment in 1997, and none supports it today.
       Indeed, there was, and is, no reliable medical data that 
     partial-birth abortion is safe or safer than alternative 
     medical procedures.
       There are other medical options.
       In my many decades of service as a medical doctor, I have 
     never known of a case where partial-birth abortion was 
     necessary in place of a more humane and ethical alternative. 
     Not only have I never seen such a case, but I have never 
     known of any physician who had to do a partial-birth 
     abortion--nor have I ever met a physician who knew of anyone 
     who had to perform one out of medical necessity. In fact, 
     partial-birth abortion has risks of its own, and could injure 
     a woman.
       Medical science should not have been twisted in 1997 for 
     political or legislative gains.
       Ms. Kagan's political language, a direct result of the 
     amendment she made to ACOG's Policy Statement, made its way 
     into American jurisprudence and misled federal courts for the 
     next decade.
       She misrepresented not only the science but also 
     misrepresented her role in front of your elected 
     representatives in the United States Senate.
       This is unethical, and it is disgraceful, especially for 
     one who would be tasked with being a measured and fair-minded 
     judge.
       Americans United for Life Action has released a thorough 
     and comprehensive report on this matter, a report that 
     provides substantive evidence of Ms. Kagan's actions in this 
     matter. I ask that Senators and the American people give this 
     report their most serious consideration. I urge the Senate to 
     reject the politization of medical science and vote no on the 
     Kagan nomination.
           Sincerely,
     C. Everett Koop, M.D., Sc.D.,
       Surgeon General of the United States Public Health Service, 
     1981-89.
                                  ____

         The Ethics & Religious Liberty Commission of the Southern 
           Baptist Convention,
                                    Washington, DC, July 20, 2010.
     Hon. Patrick J. Leahy,
     Chairman, Senate Judiciary Committee, U.S. Senate, 
         Washington, DC.
     Hon. Jeff Sessions,
     Ranking Member, Senate Judiciary Committee, U.S. Senate, 
         Washington, DC.
       Dear Chairman Leahy and Ranking Member Sessions: On June 
     25, we sent you a letter expressing serious concerns about 
     Elena Kagan's nomination as the next associate justice to the 
     U.S. Supreme Court. As we stated, we have been alarmed about 
     Kagan's lack of respect for the First Amendment's

[[Page 15240]]

     right to free speech, her admiration for extreme judicial 
     activists, and her role in advancing pro-abortion policies. 
     We also expressed our distress about Kagan's attempts, while 
     dean of Harvard Law School, to bar military recruiters from 
     campus because of her own personal views in opposition to the 
     military's ``Don't Ask, Don't Tell'' policy. Unfortunately, 
     these concerns remain.
       During the Judiciary Committee's confirmation hearings, 
     Kagan failed to satisfactorily clarify her actions and 
     opinions. Many of her answers were confusing and unclear. She 
     refused to respond to several key questions in an open and 
     honest manner. She also avoided many issues altogether. Since 
     Kagan has had no judicial experience and possesses limited 
     experience as a practicing attorney, we were interested in 
     learning about her judicial philosophy. However, we learned 
     little about her beliefs and judicial views during the 
     confirmation hearings. Rather than providing answers to our 
     concerns, Kagan's responses have only raised more serious 
     questions.
       After careful consideration, we believe Elena Kagan is not 
     a suitable nominee for the Supreme Court. She has evaded too 
     many questions and her record is too obscure to confirm her 
     to this lifetime appointment. Consequently, we urge you to 
     vote against Kagan's confirmation to the Supreme Court.
           Sincerely,
                                                  Richard D. Land.

  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, let me begin by thanking the chairman 
and ranking member of the Judiciary Committee, Senator Leahy and 
Senator Sessions, on conducting a dignified and respectful hearing on 
the Kagan nomination.
  Let me just add that, in my view, the way Republicans on the 
Judiciary Committee have conducted themselves in the minority over the 
past few years underscores that the kind of hyperbole and hysteria that 
has too often accompanied the Supreme Court nominations of Republican 
Presidents is hardly an essential part of the process. The committee 
hearings gave Senators and the American people a valuable opportunity 
to focus our attention on a woman whom President Obama would like to 
see deciding cases on some of the most important and consequential 
issues we face as a country. Ms. Kagan will be ruling on some of the 
most important legal questions that arise during President Obama's 
administration and long after he leaves office. It was vitally 
important that we have an opportunity to question her on her views 
about the law. What we learned from the hearing and what we were unable 
to learn from it form an important part of the record on her 
nomination.
  But this, of course, is just a part of Ms. Kagan's record. Senators 
have spent weeks examining Ms. Kagan's experience and background in 
light of the awesome responsibility that comes with a lifetime 
appointment on our Nation's highest Court. As I have said previously, 
my own judgment is that Ms. Kagan is not suited to assume a lifetime 
position on our Nation's highest Court. Now I would like to explain why 
in more detail.
  As we know, Ms. Kagan does not have the judicial or private practice 
experience most modern-day Supreme Court Justices have had--far from 
it. This is relevant not because one has to have prior judicial 
experience in order to be a good Supreme Court Justice--that is not my 
view now, and it never has been--but the absence of judicial experience 
makes it all the more important that we look more closely at the kind 
of experience Ms. Kagan has, in fact, had. A review of Ms. Kagan's 
experience reveals a woman who has spent much or her adult life not 
steeped in the practice of law but in the art of politics.
  When we look at her resume, we find a woman who has worked fervently 
to advance the goals of the Democratic Party and liberal causes, 
usually at the expense of those with whom she disagrees politically or 
ideologically. In college, she spent one summer working 14 hours a day 
for a liberal Democratic candidate for the U.S. Senate from New York. 
When her candidate lost, Ms. Kagan wrote that it was her hope that one 
day a ``more leftist left will once again come to the fore.''
  In fairness, few of us would want everything we said or wrote as 
college students put up on a billboard. But the trajectory of Ms. 
Kagan's career and the records from her time as a political advisor in 
the Clinton White House suggest someone, as one news story put it, who, 
long after college and even at the highest peaks of political 
influence, was ``driven and opinionated, with a flair for political 
tactics. . . .''
  What else do we find in Ms. Kagan's resume?
  Well, 8 years after that first Senate race, she volunteered for the 
Dukakis Presidential campaign, working as an opposition researcher to 
defend the then-Governor of Massachusetts from attacks and to look for 
ways to attack the Republican opposition. I note her job as an 
opposition researcher because it is part of a pattern of partisan 
political activity and because Democrats themselves have strongly 
questioned the impartiality of Republicans who have held this type of 
job.
  As a Supreme Court law clerk, Ms. Kagan often inserted her own 
personal views into her legal advice. In one case, for example, she was 
dismissive of a man's second amendment claim because it was something 
that, in her words, she did not find to be ``sympathetic.''
  Later, as an aide to President Clinton, she did not serve as an 
attorney but as a policy advocate, seeking legal advice rather than 
giving it. It was in this role that she helped lead a task force on 
changing the Nation's campaign finance laws and gleefully noted when 
one specific proposal would disadvantage Republicans. She also went out 
of her way to deter lawyers at the Justice Department from officially 
noting their serious constitutional concerns with a campaign finance 
proposal because it might complicate the pursuit of the Clinton 
administration's political goals.
  It was also at the Clinton White House that she suggested turning a 
routine literacy event at a Maryland school into a chance to score 
political points against--you guessed it--Republicans. And it was there 
that she went to extraordinary lengths to prevent the enactment of a 
ban on partial-birth abortion, a procedure the vast majority of 
Americans strongly oppose.
  From the Clinton administration, she went on to academia. She had 
strongly held views and acted upon them there as well. As dean of 
Harvard Law School, she refused to give our military, at all times, the 
full and good access to which they are entitled under Federal law. 
Indeed, she was so driven by her own personal views on this issue that 
she took a position in a case before the Supreme Court that was so 
legally dubious that not a single Justice agreed with it.
  From Harvard, President Obama--her friend and former colleague at the 
University of Chicago Law School--selected her to be his Solicitor 
General. I, and the vast majority of my Republican colleagues, voted 
against her nomination to that position, given her lack of litigation 
experience. Indeed, Ms. Kagan made her first oral argument in any 
court, for any purpose, just last year in the Citizens United case. 
Having been in the courtroom myself that day, I heard her argue to an 
astonished Supreme Court that the power of the Federal Government is so 
vast it can ban political speech with which it disagrees, such as 
political pamphlets, despite the clear commands of the first amendment 
to the contrary.
  So when we look at Elena Kagan's background, what we find again and 
again is someone who has worked tirelessly to advance a political 
agenda or ideology, often at the expense of the law.
  Let's look for a moment at her relationship to the current 
administration.
  We know the President and Ms. Kagan are former colleagues and 
friends. We know that the President views her as an important and loyal 
member of his team and that he was particularly pleased with her 
handling of the Citizens United case. And we know the President is 
confident that Ms. Kagan shares his view that judges should be judged 
especially on their ability to empathize with some over others--in 
other words, that she embraces the so-called empathy standard whereby 
judges act on, to quote the President, ``their broader vision of what 
America should be,'' which may or may not be what the law says is 
required. All of which brings us to the

[[Page 15241]]

question of whether Ms. Kagan is suited to sit on the Supreme Court.
  We do not have a judicial or private practice record to go to, but 
from the record we do have--that of a passionate policy advocate, a 
zealous political operative, and a loyal member of the Obama 
administration--the President picked precisely--precisely--the kind of 
judge he said he would. But is this the end of the inquiry? The 
President won the election. Ms. Kagan is bright. She has a good humor. 
Does the Constitution suggest that we therefore must assent to her 
nomination? Is that what the Founders envisioned?
  Well, the Federalist Papers say two things that are particularly 
relevant here.
  First, let's look at Federalist 76, which gives examples of specific 
disqualifiers for confirmation. The common theme for these 
disqualifiers is someone who is nominated not because of their 
objective qualifications but because of a personal connection to the 
Executive--be it friendship, family relationship, or a belief that they 
will exhibit a bias. It says the Senate's power to disapprove a nominee 
``would be an excellent check upon a spirit of favoritism in the 
President, and would tend greatly to prevent the appointment of unfit 
characters from State prejudice, from family connection, from personal 
attachment, or from a view to popularity.'' That is Federalist 76.
  Now let's look at Federalist 78, which talks about the role of the 
courts in our democracy and the proper philosophy for a judge. Here, 
Hamilton writes that courts may not ``substitute their own pleasure to 
the constitutional intentions of the legislature.'' He adds that their 
job must be to ``declare the sense of the law'' and that if, instead, 
they should exercise their ``WILL''--which he puts in all capital 
letters--``the consequence would be . . . the substitution of their 
pleasure to that of the legislative body.'' In other words, Hamilton 
was cautioning against judges so motivated by their own passions and 
sympathies that they would use their judicial power to implement, as 
President Obama puts it, ``their broader vision of'' what ought to be.
  So while Hamilton, in Federalist 76, listed some of the reasons for 
disqualifying a nominee, this was clearly not an exhaustive list. 
Surely he did not lay out the critical qualification for a judge in 
Federalist 78 and then leave the Senate powerless to enforce it. Both 
papers must be read together, not in isolation, which brings us back to 
Ms. Kagan.
  If you believe the role of a judge is to be an impartial arbiter, Ms. 
Kagan's background as a policy advocate and political lawyer--and 
oftentimes a very partisan one--cannot be ignored. Indeed, Members of 
both parties should appreciate the importance of confirming judges who 
are more interested in what the law says than in how the law can be 
used to advantage any one side.
  As the chairman of the Judiciary Committee once put it:

       No one should vote for somebody that's going to be a 
     political apparatchik for either the Democratic Party or the 
     Republican Party.

  If you believe the role of a judge is to be an impartial arbiter, Ms. 
Kagan's relationship to the President can't be ignored either. I think 
our friend, the senior Senator from Ohio, put his finger on what 
Federalist 76 was talking about in this regard. As he put it earlier 
this week:

       I would argue that General Kagan has been nominated based 
     on her friendships and her personal attachments with 
     President Obama and others at the White House, not based on 
     objective qualities that would indicate she is qualified to 
     be a Supreme Court Justice.

  As for the empathy standard, well, empathy may be a very good quality 
in general, but in a court of law it is only good if you are lucky 
enough to be the guy the judge empathizes with. It is only good enough 
if you happen to share the judge's ``broader vision of what America 
ought to be,'' which is the exact opposite of what the author of 
Federalist 78 had in mind.
  Let's say you are a pro-life group challenging a restriction on late-
term abortion and you are appearing before a Justice Kagan. In light of 
the lengths she went to in order to arrive at her preferred result on 
the subject of partial-birth abortion, do you think you are going to 
get a fair shake?
  Let's say you think the government is infringing upon your second 
amendment rights. Given that she dismissively said she is not 
sympathetic to this sort of challenge, do you think she is going to 
apply the law or her own broader vision of how America should be?
  Let's say you are a conservative nonprofit group that wants to 
publish a pamphlet or show a movie before an election. In other words, 
let's say you are a group such as Citizens United. Given her record of 
partisan advocacy, how do you think you are going to fare before her in 
that case?
  Ms. Kagan has never made a secret of her professional aspirations. 
She has cultivated all the right friendships along the way, including 
the President of the United States. This is all well and good but, in 
my view, it strains credulity to think that Ms. Kagan's strong 
political views will be more constrained by the Constitution once she 
reaches her goal than they have been up until now.
  Some of Ms. Kagan's supporters would like us to focus on her 
personality. They say she has a knack for making friends and getting 
along well with different kinds of people. Once again, these are all 
fine qualities. No one has any doubt that Ms. Kagan is bright and 
personable and easy to get along with. But the Supreme Court is not a 
social club. If getting along in polite society were enough reason to 
put someone on the Supreme Court, then we wouldn't need a confirmation 
process at all.
  The goal was not to determine whether we think someone is smart and 
easy going; it is whether someone can be expected to be a neutral and 
independent arbiter of the law rather than a rubberstamp for this 
administration or for any other.
  Whether it is small claims court or the Supreme Court, Americans 
expect politics to end at the courtroom door. Nothing in Elena Kagan's 
record suggests that her politics will stop there.
  Ms. Kagan's background as a political operative, her lengthy resume 
of zealous advocacy for political and ideological causes, often at the 
expense of the law and those whose views differ from her own, her 
attachment to the President and his political and ideological goals, 
including his belief in the extraconstitutional notion that judges 
should favor some over others, make her precisely the kind of nominee, 
in my view, the Founders were concerned about and that Senators should 
have reason to oppose.
  For these reasons, I will vote against the nominee, and I urge my 
colleagues to do the same.
  I yield the floor.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. REID. Mr. President, the Republican leader and I recommend that 
Senators proceed to the Senate floor to cast their votes. We ask that 
Senators be seated when they cast their votes.
  Decades before America's founding--when its direction was only 
roughly charted and its doctrines still in draft form--a lawyer from 
Massachusetts wrote that ours must be a nation of laws and not of men. 
That man, John Adams, knew that the rules and rights of a free land 
must withstand personal whims and political winds. It is a belief so 
basic Adams would later enshrine it in his State's constitution.
  Today we will send to our highest Court another brilliant lawyer from 
Massachusetts, Elena Kagan, someone whose respect for the rule of law 
is matched only by her appreciation for those laws that concern the 
daily lives of the people they govern. The roots of General Kagan's 
respect for the rule of law are in her respect for our separation of 
powers. It is a reverence she developed during her service in all three 
branches of government, defending the first and second amendments, 
strengthening our national security, and protecting children's safety.
  Wherever Elena Kagan has gone throughout her considerable career, she 
has succeeded. At Princeton and Oxford, at the law schools at Harvard 
and the University of Chicago and back

[[Page 15242]]

to Harvard once again, in the private sector and in the highest levels 
of government, she has brought together people of every ideological 
stripe.
  In recent weeks, we have again seen how effectively she impresses and 
unites those she meets. Look at the incredibly diverse array of people 
and organizations speaking in unison in favor of her nomination, 
including every Solicitor General, no matter the party, over the last 
quarter century. Now she is poised to join a Court whose power she 
respects as well as its limits. She understands that the laws are made 
only on this side of the street and only interpreted on the other side 
of the street.
  Our Supreme Court promises equal justice for all who come before its 
bench. We must also fulfill the promise of greater equality among those 
who sit behind the bench.
  Although the Founders did not want ours to be a government of men, 
for a long time men were the only ones running it. The most qualified 
women were turned away--turned away--one after another. Justice 
O'Connor graduated third in her law school class at Stanford, one of 
the premier law schools in this country, while others her age were just 
finishing college. The only job offer she got after graduating third in 
her class was a job as a legal secretary.
  Justice Ginsburg graduated first in her law school class at Columbia, 
another premier law school, but not a single law firm would hire her 
either. She was denied a clerkship not by one but two Supreme Court 
Justices because, as they readily admitted, she was a woman.
  It took nearly 200 years before the Court welcomed Sandra Day 
O'Connor as its first woman and more than a decade longer before Ruth 
Bader Ginsburg would join her as its second. A year ago today, Ginsburg 
was the only woman Justice, but when it opens this fall, three women--a 
full third of the bench--will preside together for the first time. That 
is progress. It is not yet completely equitable in a nation where women 
represent more than one-half the population, but it certainly is 
progress.
  That Sotomayor and Kagan can join the Court in such relatively rapid 
succession is a tribute to the path their predecessors cleared.
  Justice Ginsburg said last year that ``women belong in all places 
where decisions are being made.'' The Supreme Court is certainly one of 
those places. Elena Kagan is certainly one of those women.
  As the Senate votes for this nominee on her merits, we are also 
voting for the most inclusive Court in its long history. It will be 
even more inclusive when we confirm more Justices who don't come from 
Ivy League schools.
  In the oath General Kagan will soon take--the same oath sworn by 111 
Justices before her--she will pledge to ``do equal right to the poor 
and to the rich.'' That is a commitment her predecessor, Justice John 
Paul Stevens, always fulfilled. We are grateful for Stevens' long 
record of service as a decorated war veteran, a successful lawyer, and 
an impartial judge and Justice who summoned common sense in his 
opinions. He was always passionate but always a gentleman.
  Stevens once wrote: ``Corporations are not part of `We, the People' 
by whom and for whom our Constitution was established.'' General Kagan 
believes that too. It is the principle she defended in her first case 
as the first female Solicitor General; that is, our country's chief 
lawyer, when she fought to stop foreign and domestic corporations from 
drowning out American voters' voices. She knew it would not be an easy 
case, but she stood for fairness, transparency, and citizens' rights 
because that is what a nation of laws demands.
  General Kagan learned from another trailblazing Justice and her 
personal hero, Thurgood Marshall, that behind the law lived real 
people. She knows the Court's rulings can affect working families as 
intimately as they do wealthy interests.
  The American people deserve a Justice who understands that one 
litigant's case is no more justified simply because he has more money 
than his opponent. Elena Kagan will be that Justice.
  We need a voice on the Supreme Court who remembers and reveres the 
rights of individuals, not because people are always right and 
corporations are always wrong but because the argument of even the 
poorest citizen should be heard just as loudly, with the same patience 
and deliberation and impartiality as that of the richest firm.
  Elena Kagan has demonstrated, time and time again, that she 
understands that.
  In fact, listening is one of her strong suits. Justice Stevens often 
said that openly debated differences benefit democracy and he promoted 
what he called ``understanding before disagreeing.'' The lawyer and 
teacher the President has chosen to succeed Justice Stevens believes 
the same.
  When General Kagan spoke last year to graduates of Harvard Law 
School, where she was beloved by the students and faculty alike, she 
reminded them: ``You only learn something when your ears are open, not 
when your mouth is open.'' That shows wisdom. It takes a smart person 
to recognize that we make progress and make the right decisions when we 
approach each person and each problem with an open mind. It takes a 
smarter one to say as much.
  So I hope each Senator will approach this vote the way General Kagan 
will approach each question that comes before the Court: with deference 
to the facts, the evidence, and our shared national interests.
  General Kagan is a public servant who has remained far above the 
political fray and will be the only Justice who comes from outside the 
judicial monastery. She is a student and teacher of the law who looks 
up from her books out into the real world. She knows that while we are 
a nation of laws and not of men, the former has a genuine and personal 
impact on the lives of the latter.
  Because of her intellect and integrity; her reason, restraint, and 
respect for the rule of law; her unimpeachable character and unwavering 
fidelity to our Constitution, I am proud to cast my vote for Elena 
Kagan's confirmation to be a Justice of the U.S. Supreme Court.
  We are going to wait until the hour of 3:30 arrives before we start 
to vote. Senator Leahy, at that time, will have a request to make.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, I ask for the yeas and nays on the 
nomination of Elena Kagan to be an Associate Justice on the Supreme 
Court of the United States.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Elena Kagan, of Massachusetts, to be an Associate Justice of the 
United States Supreme Court?
  The clerk will call the roll.
  The legislative clerk called the roll.
  The result was announced--yeas 63, nays 37, as follows:

                      [Rollcall Vote No. 229 Ex.]

                                YEAS--63

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

                                NAYS--37

     Alexander
     Barrasso
     Bennett
     Bond
     Brown (MA)
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Grassley
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johanns
     Kyl
     LeMieux
     McCain
     McConnell
     Murkowski
     Nelson (NE)
     Risch
     Roberts
     Sessions
     Shelby
     Thune
     Vitter
     Voinovich
     Wicker

[[Page 15243]]


  The nomination was confirmed.
  The PRESIDING OFFICER. A motion to reconsider this vote is considered 
made and laid on the table. The President shall be notified of the 
Senate's action.
  Mr. LEAHY. Mr. President, the Senate has concluded our consideration 
of the nomination of Elena Kagan and confirmed her as an Associate 
Justice on the U.S. Supreme Court. For the second time in 2 years, we 
have considered a nomination for a lifetime appointment to the Supreme 
Court, one of our most consequential responsibilities. I am proud that 
process we followed in considering this nomination in the Judiciary 
Committee and in the Senate has garnered praise from many Senators for 
its fairness and thoroughness.
  We could not have given this nomination the attention it deserved 
without the help of dedicated staff. For months, the staff of the 
Judiciary Committee has worked long hours dutifully to obtain and 
review extensive amounts of documents and information and help Senators 
in our review. I wish to thank the following members of the majority 
staff in particular, Jeremy Paris, Erica Chabot, Kristine Lucius, 
Shanna Singh Hughey, Maggie Whitney, Hasan Ali, John Amaya, Sarah 
Hackett, Sarah Hasazi, Michael Gerhardt, Elise Burditt, Noah 
Bookbinder, Anya McMurray, Liz Aloi, Tara Magner, Kelsey Kobelt, Juan 
Valdivieso, Matt Virkstis, Curtis LeGeyt, Roslyne Turner, Erin O'Neill, 
Julia Gagne, Brian Hockin, Joseph Thomas, Elizabeth Saxe, Katharine 
McFarland, Miles Clark, Christine Paquin, David 
Zayas, Lydia Griggsby, Adrienne Wojciechowski, Dan Taylor, Patrick 
Sheahan, Matt Smith, Scott Wilson, Kiera Flynn, Rachel Pelham, Bree 
Bang-Jensen, Chuck Papirmeister, and Bruce Cohen. I also thank my staff 
for their hard work on this nomination, in particular, Edward Pagano, 
David Carle, Laura Trainor, and Kevin McDonald. I would also like to 
thank Stacy Rich from Senator Murray's staff who helped manage the 
floor.
  I commend and thank the hard-working staffs of the other Democratic 
members of the Judiciary Committee for their tremendous contributions 
to this effort.
  I also commend and thank Senator Sessions, the committee's ranking 
Republican, and his staff, in particular, Brian Benczkowski, Danielle 
Cutrona, Ted Lehman, and Lauren Pastarnack, for their hard work and 
professionalism.

                          ____________________