[Congressional Record (Bound Edition), Volume 156 (2010), Part 6]
[Senate]
[Pages 8296-8298]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       NOMINATION OF ELENA KAGAN

  Mr. KYL. Mr. President I, too, would like to address the Supreme 
Court nominee. I associate myself fully with the remarks of Senator 
McConnell, which raise an important point for us to consider. I will 
correct the record in a couple of situations because I think, as the 
debate unfolds, it is important for us to base our decisions on the 
same set of facts. These are not going to be particularly newsmaking or 
big surprises, but I think the record should be corrected.
  I know our majority leader, for example, misspoke the other day in 
commenting about Justice Sandra Day O'Connor because there is some 
similarity--she being the first woman ever appointed to the Supreme 
Court. I wanted to make sure the record reflected the actual situation 
with respect to Justice O'Connor.
  Leader Reid, I totally agreed with when he described her as ``one of 
my favorite Court Justices.'' He said it is ``not because she is a 
Republican but because she was a good judge.'' I subscribe to that as 
well.
  He said:

       She had run for public office. She served in the 
     legislature in Arizona. That is why she could identify with 
     many problems created by us legislators, and she could work 
     her way through that.

  For the record, I wanted to indicate her experience on the bench as a 
judge, since it is not the case that she did not have prior judicial 
experience when nominated to the Supreme Court. She was actually 
appointed to the bench by our Democratic Governor at the time, Bruce 
Babbitt. She was on the court of appeals and on the superior court 
bench before that. She served on the Maricopa County Superior Court 
bench from 1975 to 1979, and in 1979 Governor Babbitt appointed her to 
serve on the Arizona Court of Appeals. So she had extensive experience, 
from 1975 through 1981, as a judge, including in an appellate capacity.
  Prior to that time, as Leader Reid noted, she served in the Arizona 
State Legislature. In fact, she was the majority leader. She had an 
extensive legal career before that. She was a deputy county attorney. 
She was a civilian attorney. She was in the private practice of law. 
She was an assistant attorney general. Therefore, she had a very varied 
and rich experience both as a lawyer practicing law in regular 
situations in both criminal and civil context, as well as a trial court 
judge, which is great experience, I believe, and as an appellate court 
judge.
  In many respects, it is almost a perfect resume for someone to 
demonstrate broad experience and who could understand what cases are 
all about when they come from Main Street, as opposed to some of the 
more high-profile cases that tend to come before the U.S. Supreme 
Court. By every measure, I think anybody would agree that her tenure on 
the Supreme Court reflected those values and the experience that she 
had when she came to the Court.
  As I said, I know the majority leader simply misspoke when he 
suggested that she didn't have judicial experience. I did think it 
important to make that point.
  Second point: There was a statement made on TV yesterday by some 
folks who were comparing Elena Kagan and Chief Justice John Roberts; in 
effect, that John Roberts only had 2 years on the appellate court, so 
they are pretty similar. In two respects that is not correct.
  First, spending a couple a years on the court of appeals for the 
circuit court is extensive and important experience. It at least gave 
us an idea of how he approached judging. I think almost everybody in 
the Senate who voted on his confirmation understood that whatever his 
personal views were, he could clearly leave them behind and decide 
cases, as he referred to it, ``like an umpire calls the balls and 
strikes.'' That is one of the reasons he was overwhelmingly confirmed.
  I also recall that Justice Roberts' prior legal experience 
represented numerous arguments before the courts of appeals and the 
U.S. Supreme Court.

[[Page 8297]]

At the time of his confirmation, he had probably had more U.S. Supreme 
Court arguments than any other lawyer. So this was a lawyer experienced 
in appellate work and U.S. Supreme Court work.
  In contrast--and this is not to take away from Ms. Kagan--the truth 
is, I don't think she ever tried a case or argued a case to an 
appellate court. She certainly hadn't argued before the Supreme Court 
until about 6 months ago in her capacity as Solicitor General. She has 
other positions in her background. She has been a law school teacher 
and a dean of a law school. But I submit that is hardly comparable to 
the litigation experience and, particularly, the appellate experience 
John Roberts had.
  All I am suggesting is, when we make these comparisons to other 
people, we need to be accurate about it. It is taking away nothing from 
Elena Kagan, but she did not have the experience of Sandra Day O'Connor 
or John Roberts. That is something we have to deal with--something 
lacking in her record.
  One other thing--and this is personal to me because my views were 
mischaracterized. I hope this will be seen as a favorable comment 
toward Elena Kagan. It was reported today by Al Hunt that I thought 
Elena Kagan was too young for the Supreme Court. No, I don't, and I 
never said that. He was wrong when he reported that.
  I said she was relatively young for an appointment to the Supreme 
Court, and that is true. At this point, I think she is 49. She would be 
50 if she is confirmed. That is a fine age to be on the U.S. Supreme 
Court. My point was, that means, assuming her health is good--and I 
believe it is--she could have many decades on the Court. That is all 
the more reason it is important that we know her approach to judging.
  My only question about her judging has been whether she would leave 
her personal views behind as she approaches the decisions in cases that 
present two conflicting sides in adjudicating their dispute before the 
Court. It is not hard, when somebody has been an appellate court judge 
for years, to see how they approach judging and whether they can leave 
any of their personal views behind them.
  Most judges can, and that is a great thing about our system. 
Occasionally, we find a judge who has a particular conservative or 
liberal bent, and it is pretty clear they have a hard time leaving 
their political views behind and that they tend to want to figure out 
how they would like a case to come out and then rationalize a way for 
it to come out that way. Any good lawyer or judge can probably find an 
argument to support a position. But that is not the way judging should 
occur.
  My concern expressed about Elena Kagan is that there are a couple of 
things in her background that suggest that she might have a hard time 
leaving her political views behind and approaching cases, as Chief 
Justice Roberts said, as ``an umpire would call balls and strikes in a 
game.''
  Remember, he was asked whether he would favor the little guy in a 
dispute or the big guy. He said if the law was on the little guy's 
side, he would favor the little guy but, if the law was on the big 
guy's side, he would favor the big guy.
  Why is that important? We all know Lady Justice has on a blindfold, 
and there is a reason for that. The oath of office of a judge and our 
tradition in this country is for a judge to approach a case not based 
on how he wants that case to come out in his heart of hearts, not how 
he would write the law if he were a legislator but, rather, how he has 
to apply the law to the facts of that particular case.
  Occasionally, a court will even say we do not necessarily like the 
way this case has to come out, and we invite the legislature to change 
the law. In fact, the Supreme Court did that in a bill which I 
sponsored recently. I regretted the way the case came out. I do not 
think the Court had to rule the way it did. But eight of the nine 
Justices believed that Congress had gone too far in prohibiting a 
certain kind of film-making activity called crush videos where usually 
a woman with high-heeled shoes is shown crushing a small animal to 
death.
  That did not seem to me to be free speech, and it is something 
Congress could prohibit. But the Supreme Court disagreed. Eight of the 
nine Justices said: No, even though we do not necessarily like the way 
this case came out because we abhor that kind of thing, it is our view 
that the first amendment has to allow that kind of ``speech.''
  Again, I disagree that it is speech, but I admire the Justices, both 
liberal and conservative, who decided they have to apply the law even 
though the result was not something they liked, and they invited the 
Congress to fix the law, giving us a little bit of instruction as to 
how we can do that.
  I am working with colleagues in the House of Representatives to 
restructure the law so we can pass it again, overwhelmingly I am sure, 
and this time get it right within the first amendment because I do not, 
obviously, want to violate the first amendment.
  The point here is that Justices can rule in ways that force them to 
make a decision even though they do not like the way the case comes 
out. Then the legislature, if it involves a law we have passed, can fix 
it. That is the way our system is supposed to work. Rather than--and I 
much prefer that even though, in effect, I lost the case. I would much 
rather that than the Justices say: We think these crush videos are 
terrible, and even though the first amendment probably protects it, we 
are going to try to craft an argument where we can declare this law 
valid because from a public policy standpoint, we think that is a 
better result. I am pleased they ruled against my bill by saying: No, 
we cannot do that. We have to adhere to the law, as we read it.
  What I am going to be looking for in Elena Kagan is a judge who, 
despite her political views--and she has been candid about what they 
are and others have been candid as to what they are. One of her Harvard 
colleagues said her heart beats on the left. OK, I do not expect 
President Obama to appoint somebody whose heart beats on the right as 
mine does. He is going to appoint someone with his more liberal 
political views, and that is fine.
  The question is: Can she then approach cases the same way the judges 
did in the Supreme Court case I just described where even though they 
did not like the result, they felt they had to rule that way in order 
to remain consistent with their view of the first amendment.
  There have been a couple of things in which her personal view clearly 
affected her judgment as, in this case, the dean of the Harvard Law 
School. The one case everybody is familiar with is she disagreed with 
the congressional policy on don't ask, don't tell. But instead of 
having a policy that said President Clinton, who signed the bill, was 
unwelcome on the Harvard campus or the Senators and Representatives who 
had passed the bill--by the way, it was a Democratic House and Senate--
that they were not welcome on the campus, she wrote at the time 
extensively that this was a discriminatory policy of the military and 
that, therefore, the military would not be allowed on campus to 
recruit, as were all other businesses.
  Eventually, she had to change her position because the Solomon 
amendment said the university would not get any Federal funding, and 
they got about 15 percent of their funding from the Federal Government. 
They finally, after about a year, went back to the policy of allowing 
military recruiters on campus.
  In my view, she not only mischaracterized the situation by calling it 
the military's discriminatory policy, when the military is obviously 
simply following the orders of their Commander in Chief, President 
Clinton, and the law passed by the Congress, but also she discriminated 
by not criticizing or denying entry onto the campus the people who had 
passed and signed the law into effect but instead discriminated against 
the military who at the time was fighting a war. That represents a 
misjudgment on her part based on, obviously, her personal convictions. 
It interfered with the job she was supposed to be doing at the time.

[[Page 8298]]

  Would she apply that same kind of rationale when she sits on the U.S. 
Supreme Court? She obviously has strong personal views about this 
issue. How will she apply those personal views in cases of, let's say, 
``the don't ask, don't tell policy that may come before her or some 
other policy that she believed discriminated against gays or 
homosexuals. She will have to somehow find a way to demonstrate to us 
that she will not allow those personal convictions to color her 
judgment on the Court. It might be kind of hard, given it did color our 
judgment in this previous situation.
  More recently, she wrote to Members of the Senate deeply critical of 
a bill Senator Lindsey Graham and I had introduced and was eventually 
passed by the Senate and signed into law that provided a mechanism for 
dealing with the terrorists at Guantanamo Bay. We defined ``military 
combatants'' in this legislation. We provided for a determination of 
their status, for a review of that determination of status, by a direct 
appeal to the District of Columbia Circuit Court of Appeals.
  Nothing like that had ever been done, where after determination of 
status as an enemy combatant, those people would be able to go directly 
to a Federal court--and not just any Federal court, the DC Circuit 
Court of Appeals, which is one step below the Supreme Court--to have 
that determination reviewed. That was not sufficient for her. She said: 
No, this was discriminatory; that they had to have a right to appeal to 
other Federal courts any sentencing or determination of guilt, if they 
stood trial in military commissions. That has never been the law. The 
Supreme Court has never said that is the law. Yet she compared what we 
did in that bill to the discriminatory and unlawful actions of a 
dictator.
  I do not like to be called or compared to a dictator, and I can 
assure my colleagues Lindsey Graham, my colleague who was primarily 
responsible for drafting that legislation, very much had in mind the 
best way to deal with this situation from a legal standpoint, as well 
as to protect American citizens. He was not trying to enact policies 
similar to dictators'.
  In addition to the language being quite injudicious, it seems to me 
it raises questions about whether if these kinds of questions were 
posed to her in the future she could lay aside what are obviously her 
strong personal convictions about this issue.
  There are bound to be cases involving enemy combatants and others in 
this war on terror that will continue to come to the U.S. Supreme 
Court. Will she recuse herself from these cases because she has 
expressed strong personal views? That would seem to me to be 
appropriate, unless she could somehow demonstrate she can put all that 
behind her and decide these cases strictly on the law, irrespective of 
her personal prejudices.
  I hope I am not perceived by these comments to have made a judgment 
about Elena Kagan. When I voted for her confirmation as Solicitor 
General, I said I thought she was well educated, very intelligent, very 
personable, and I wanted her to have a chance to do the job as 
Solicitor General. I had hoped she would remain in the position for a 
little bit longer than a year before being nominated for a position as 
prestigious as the U.S. Supreme Court. Nonetheless, I am firmly 
committed to examining her record as thoroughly as possible and then 
making a judgment based on that entire record.
  Despite the fact I have raised two questions, I do not want that to 
be suggestive of any conclusion I have reached because I have not 
reached a conclusion. In fact, I am a little bit critical of my 
colleagues who have immediately reached a conclusion without even 
examining the record. There is something like 160,000 pages of 
documents in the Clinton Library relative to her record as a policy 
adviser in the Clinton White House. Obviously, some of her views will 
be reflected in those documents and I think it is important to see what 
they say.
  It may well be that she represents a very tempered thought that is 
pragmatic and not overly ideological and which appears to suggest that 
in the position she held, she could lay aside her personal views and 
give good advice. It is quite possible that is what those records will 
reflect. It may also reflect something different.
  Until I have the benefit of reviewing those documents and then 
talking with her personally and hearing her testify, it seems to me a 
bit premature to be making a judgment about whether she should be 
confirmed.
  Again, I wanted the opportunity to reassure all of my colleagues that 
Sandra Day O'Connor, the first woman appointed to the Supreme Court, 
did, indeed, have a good judicial experience on the bench prior to her 
nomination. That is not an absolute requirement, in my view, because 
her colleague from Arizona on the Court for a while, Chief Justice 
Rehnquist, had not had judicial experience. Every other nominee in the 
last 40 years has. He had not. Nonetheless, he had extensive experience 
of over 20 years in law practice, both in the private law practice as 
well as the Department of Justice. So he, too, had a very long record 
from which one could judge whether his personal views could be set 
aside in judging cases.
  That, at the end of the day, is the test that should apply to all 
nominees, should apply to Elena Kagan. I am sure my colleagues and I 
will have ample time to review the report, reflect on it, discuss it 
with her, and then come to our judgments as to whether she satisfies 
that judgment.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. INHOFE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

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