[Congressional Record (Bound Edition), Volume 156 (2010), Part 6]
[Senate]
[Pages 8686-8687]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       NOMINATION OF ELENA KAGAN

  Mr. LEAHY. Mr. President, earlier today I announced that the Senate 
Judiciary Committee will hold its confirmation hearing on the 
nomination of Solicitor General Elena Kagan to be Associate Justice on 
the U.S. Supreme Court beginning June 28.
  I have reached out to Senator Sessions, the committee's ranking 
Republican, to discuss the scheduling of this hearing, and we were 
finally able to meet yesterday. We worked cooperatively to send a 
bipartisan questionnaire to the nominee last week. We joined together 
to send a letter yesterday to the Clinton Library asking for files from 
Solicitor General Kagan's work in the White House during the Clinton 
administration. I will continue to consult with Senator Sessions to 
ensure that we hold a fair hearing.
  This is a reasonable schedule that is in line with past practice. The 
hearing on the nomination of Justice Kennedy was held just 33 days 
after his designation. The hearing on the nomination of Justice 
Ginsburg was held 36 days after her nomination. And the hearing on the 
nomination of Justice Rehnquist to be Chief Justice was held 42 days 
after his nomination. When John Roberts was first nominated to succeed 
Justice O'Connor, I agreed with the Republican Chairman to proceed 49 
days after his designation even though he had not yet even received his 
answer to the committee's questionnaire. After Hurricane Katrina, the 
death of Chief Justice Rehnquist, and the withdrawal of that initial 
nomination and his nomination, instead, to be Chief Justice, the 
committee proceeded just days after his nomination and only 55 days 
from his earlier designation. Of course, last year we proceeded with 
the hearing on the nomination of Justice Sotomayor 48 days after she 
was designated. Senate Republicans said that hearing was fair and was 
conducted fairly. This year, I am scheduling the hearing to start 49 
days after Elena Kagan's nomination.
  There is no reason to unduly delay consideration of this year's 
nomination. Justice Stevens announced on April 9 that he would be 
leaving the Court. He wrote that he would resign effective the day 
after the Supreme Court concludes its summer session at the end of 
June. He noted that ``it would be in the best interests of the Court to 
have [his] successor appointed and confirmed well in advance of the 
commencement of the Court's next Term,'' and I wholeheartedly agree 
with Justice Stevens. That is in the best interests of the Court and 
the country.
  Since Justice Stevens' announcement in early April, there has been a 
good deal of work done in preparation. The President announced his 
choice a month later, on May 10. During that month, much was written 
and said

[[Page 8687]]

about the eventual nominee who was identified from the outset as a 
leading candidate for nomination. When the President made it official, 
Senate Republicans were quick to react. Indeed, one Senate Republican 
announced on the very day that the President announced his selection 
that the Senator opposed Solicitor General Kagan's nomination and would 
be voting against confirmation. Extreme rightwing interest groups and 
commentators have been savaging her since before the nomination was 
announced, and that has not subsided. The misstatements and harsh 
characterizations make proceeding sooner rather than later all the more 
important. Solicitor General Kagan deserves the earliest opportunity to 
respond to these attacks and to set the record straight. The American 
people deserve a process that is fair and thorough but not needlessly 
prolonged. In selecting this hearing date, I am trying to be fair to 
all concerned.
  I also want to conclude the process without unnecessary delay so that 
Solicitor General Kagan might participate fully in the deliberations of 
the Supreme Court in selecting cases and preparing for its new term. I 
want to complete Senate consideration, as Justice Stevens suggested, so 
that the new Justice is confirmed well in advance of the commencement 
of the Supreme Court's next term, so that she may organize her 
chambers, select her clerks, and fully participate in the work of the 
Court.
  This schedule is also in keeping with the time line Senator McConnell 
recommended in 2005, when President Bush made his first nomination to 
the Supreme Court and Senator McConnell, then the Republican whip and 
now the Senate Republican leader, said that the Senate should consider 
and confirm the President's Supreme Court nomination within 60 to 70 
days. We worked hard to achieve that. The final Senate vote on Chief 
Justice Roberts' nomination was 72 days after he was designated. 
Justice Sotomayor was likewise confirmed 72 days after she was named. 
Seventy-two days after the nomination of Elena Kagan will be July 21.
  Unlike the late July nomination of John Roberts, this nomination by 
President Obama was announced on May 10. Unlike the resignation of 
Justice O'Connor, which was not announced until July, the retirement of 
Justice Stevens was made official on April 9. So in this instance the 
vacancy arose almost 3 months earlier than in 2005. After bipartisan 
consultation, President Obama made his nomination more than 2 months 
earlier than President Bush did in 2005.
  One of the Republican criticisms of this nomination is that Solicitor 
General Kagan has not been a judge and does not have years of opinions 
to be considered. That should make Senators' preparation for the 
hearing less labor intensive than that for Justice Sotomayor. In 
addition, we thoroughly reviewed and considered her record just last 
year when the Senate, by a bipartisan majority vote, confirmed her 
nomination to serve as the Solicitor General of the United States, 
often called the ``Tenth Justice.''
  To delay the confirmation hearing until July, as some have suggested, 
would mean extending the preparation time from 49 to 63 days. But 
Republicans complain that there is less to review, nothing like the 
thousands of opinions they complained about last year. Accordingly, we 
could actually proceed more quickly to the hearing. This last weekend, 
Republican Senators said that Solicitor General Kagan's answers at the 
hearing were going to be the key. If that is true and they will 
approach the hearing with open minds and listen to her answers to their 
questions, we should not needlessly delay getting to those questions 
and answers.
  The hearing is the opportunity for all Senators on the Judiciary 
Committee, both Republicans and Democrats, to ask questions, raise 
concerns, and evaluate the nomination. It seems to me that Republican 
Senators are ready to ask questions now. At last week's consideration 
of the nomination of Goodwin Liu to the Ninth Circuit, much of the 
discussion from Republican Senators seemed, instead, to be about the 
Kagan nomination to the Supreme Court. The Republican Senators say that 
they want to ask her about her actions as the dean of Harvard Law 
School and about her judicial philosophy. It does not take 2 months to 
prepare to ask those questions. They have already raised them. They 
will surely be prepared to ask them by late June. This is a schedule 
that I think is both fair and adequate--fair to the nominee and 
adequate for us to prepare for the hearing and Senate consideration. 
There is no reason to indulge in needless and unreasonable delay.
  We already have received Solicitor General Kagan's response to the 
committee's questionnaire. Senator Sessions and I have sent a letter to 
the National Archives requesting documents related to Elena Kagan's 
service in the Clinton administration and there should be no cause for 
concerns that we will have these records before the committee in light 
of the White House Counsel's request over the weekend for the release 
of thousands of pages of records from that time. We will be prepared to 
proceed to a hearing on June 28, almost 6 weeks from today.
  The purpose of the hearing is to allow Senators to ask questions and 
raise their concerns. It is also the time the American people can see 
the nominee, consider her thoughtfulness, her temperament, and evaluate 
her character. I am disappointed that some Republican Senators have 
already declared that they will vote no on Solicitor General Kagan's 
nomination and have made that announcement before giving the nominee a 
fair chance to be heard. It is incumbent on us to allow the nominee an 
opportunity to be considered fairly and allow her to respond to false 
criticism of her record and her character. Those who are critical and 
have doubts should support the promptest possibly hearing. That is 
where questions can be asked and answered. That is why we hold 
hearings.
  President Obama handled the selection process with the care that the 
American people expect and deserve and met with Senators from both 
sides of the aisle. I suggested that he nominate someone outside the 
judicial monastery, whose experiences were not limited to those in the 
rarified air of the Federal appellate courts. The Supreme Court's 
decisions have a fundamental impact on Americans' everyday lives. One 
need look no further than the Lilly Ledbetter and Diana Levine cases to 
understand how just one vote can determine the Court's decision and 
impact the lives and freedoms of countless Americans. One need look no 
further than the Citizens United decision to know that the decisions of 
the Supreme Court can drown out the voices of individual Americans in 
favor of wealthy corporate interests. I believe that Solicitor General 
Kagan understands that our courthouse doors must remain open to hard-
working Americans.
  President Obama is to be commended for having consulted with Senators 
from both sides of the aisle. Now the Senate must fulfill its 
responsibility. The nominee has returned the Judiciary Committee 
questionnaire and will be completing her meetings with Senators on the 
Judiciary Committee very soon. I hope that all Senators now will work 
with me to move forward to consider this nomination in a fair and 
timely manner.

                          ____________________