[Congressional Record (Bound Edition), Volume 156 (2010), Part 8]
[Senate]
[Pages 10779-10781]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       NOMINATION OF ELENA KAGAN

  Ms. KLOBUCHAR. Mr. President, I am pleased to come to the floor today 
with a few of my women colleagues to discuss the President's nomination 
of Solicitor General Elena Kagan to be an Associate Justice of the 
Supreme Court. I am a member of the Judiciary Committee. We are looking 
forward to the hearings coming up in a few weeks. We hope the country 
is watching because this is a very important job and Ms. Kagan is a 
very impressive person.
  With that, I turn to the Senator from Michigan, Ms. Stabenow.
  The ACTING PRESIDENT pro tempore. The Senator from Michigan is 
recognized.
  Ms. STABENOW. Mr. President, I thank the Senator from Minnesota.
  We are here to talk about President Obama's nomination of Elena 
Kagan. I will come to the floor at a later point to respond to my 
friend from Wyoming with a different view about health care reform. We 
have a vote in just a few moments, a very important vote as to whether 
to support the ability of States, in these difficult times, to be able 
to continue health care for people who are out of work and for seniors 
who are in nursing homes, low-income seniors who find themselves caught 
in the economic crunch. In Michigan, there are 6 individuals out of 
every 100 who are on Medicaid now or who need to be on Medicaid. The 
upcoming vote will determine whether we place a value on health care, 
place a value on seniors in nursing homes and people who, because they 
have lost a job or because of some other situation in this economy, 
find themselves without health care. I hope colleagues who express 
concern about people having access to health care will join us in 
voting yes.
  I thank the Senator from Minnesota for organizing and bringing us to 
the floor. I join her in speaking in favor of the President's 
nomination of Elena Kagan to be the next Justice of the U.S. Supreme 
Court.
  She grew up in a family like so many in Michigan, with parents who 
worked hard for a living so they could provide for their children. Her 
mom was a teacher. Her dad was a tenants lawyer in New York City. She 
saw firsthand the effects of laws and court decisions on the everyday 
lives of Americans. Throughout her distinguished career, she has 
brought the lessons she learned from her parents--in her words, 
``service, character and integrity''--to every role she has had.
  She took those lessons with her to the White House, where she worked 
with Democrats and Republicans to forge commonsense solutions to issues 
such as restricting tobacco companies from targeting ads to children.
  She took those lessons with her to Harvard, where she became a 
successful and beloved professor. As dean, she worked to engage her 
students in service and to honor those who have served. Every year, she 
invited all of the military veterans on campus to her home for a 
Veterans Day dinner. She reached out to students from all across the 
political spectrum and proved to them one-on-one that she was a smart 
and pragmatic leader. Very conservative law students at Harvard tend to 
join the Federalist Society, while progressive law students are more 
likely to join the American Constitution Society. The two groups 
disagree on almost everything. Yet both groups sent letters to the 
Judiciary Committee supporting Elena Kagan's nomination as Solicitor 
General. That is rare in politics and is proof that Elena Kagan is 
respected for her fairness and impartiality.
  Besides her parents, perhaps the biggest influence in her life was 
her one-time boss and mentor Justice Thurgood Marshall, who was also 
the Solicitor General before becoming a Supreme Court Justice. She 
admired his ability, in her words, to understand the way law works ``in 
practice, as well as in the books--of the way in which law acted on 
people's lives.''
  In private practice, Elena Kagan represented clients in litigation. 
Today, she represents all of us as the people's lawyer, the Solicitor 
General of the United States. Her job every day is to represent her 
clients, the people of our great country, before the U.S. Supreme 
Court. As a Justice, she will continue to represent the people. That is 
why I urge my colleagues today to join with us in confirming her 
nomination without delay.
  I thank the Chair.
  The ACTING PRESIDENT pro tempore. The Senator from New Hampshire is 
recognized.
  Mrs. SHAHEEN. Mr. President, I am pleased to join my colleagues, 
Senators Stabenow and Klobuchar, in supporting the nomination of Elena 
Kagan to be an Associate Justice of the Supreme Court. However, before 
addressing the nomination of Elena Kagan, I wish to echo the remarks of 
Senator Stabenow about the need to look at the legislation that is 
going to come before us in a few minutes.
  My colleague, Senator Barrasso, talked about wanting to help those 
people who are most in need of health care. One of the best ways we can 
do that is to pass the legislation pending before this body which 
includes an extension of Medicaid benefits, which is so important to 
States and to the people who are most in need, who have the least 
ability to get health care. I hope that as our colleagues are thinking 
about how they can support health care for Americans, they will support 
this legislation and make sure we extend Medicaid benefits for people 
throughout the States.
  Turning to the Elena Kagan nomination, I am extremely pleased that 
President Obama has selected a woman with such impressive and unique 
credentials to serve on the Nation's highest Court. I had the good 
fortune to meet Solicitor General Kagan a number of years ago when both 
of us were at Harvard. I was at the Kennedy School as the director of 
its Institute of Politics, and she had just become dean of the Harvard 
Law School. It didn't take her very long to get a reputation here as 
someone who was loved by the students and the faculty, who was able to 
get everyone to work together. It comes as no surprise to me that she 
has continued her impressive accomplishments.
  My favorable impression of Elena Kagan was confirmed after a recent 
meeting with her in my Senate office, spending more time really looking 
at what her record has been with the law. I wish to focus my remarks 
this morning on Elena Kagan's record that has prepared her to be a 
Justice.
  A number of my colleagues from across the aisle have implied or 
stated directly that the Solicitor General lacks sufficient range of 
professional experience. A number of Senators are concerned that Elena 
Kagan does not have judicial experience. To address this point, it is 
worth noting that 41 of the Court's 111 Justices have joined the Court 
without any previous experience as a judge. Among these 41 are some of 
the most notable jurists of the last century: Justices Louis Brandeis, 
Felix Frankfurter, William Douglas, Byron White, and Lewis Powell. 
Chief Justices Harlan Stone, Earl Warren, and William Rehnquist were 
also chosen for the Court without prior judicial experience. The 
Presidents who nominated these Justices and the Senators who confirmed 
them were right to recognize that experiences other than being a judge 
can prepare one to serve on the Supreme Court with distinction. Elena 
Kagan certainly has had that experience. She has traveled a path of 
extraordinary accomplishment. I am confident she will continue that 
trend once she is elevated to the bench.
  With more than 24 years of legal experience in a range of settings, 
she will bring a distinct perspective to judging that will serve both 
the Court and Americans well. Without a doubt, Ms. Kagan has been a 
lifelong student of the Supreme Court. As we heard from Senator 
Stabenow, she began her career as a clerk in the chambers of two highly 
regard jurists, including the legendary Thurgood Marshall. These 
formative years early in Ms. Kagan's career instilled in her an 
appreciation

[[Page 10780]]

of the impact of judicial decisions on people and gave her an ability 
to zero in on critical facts and issues in cases.
  After 3 years in private practice in Washington, Ms. Kagan became a 
professor of law at the University of Chicago. She focused there on 
scholarship and constitutional law, particularly the first amendment. 
She quickly became known as a powerful advocate for individual 
constitutional rights.
  She served as an Associate White House Counsel and later Deputy 
Director of the Domestic Policy Council during the Clinton White House. 
These positions forced Elena Kagan to tackle difficult public policy 
matters while analyzing the limits of executive branch power.
  Later, as dean of the Harvard Law School, Ms. Kagan is credited with 
making immense progress toward uniting a fractious faculty of very 
powerful opinions and intellects. She built bridges across academic and 
political groups.
  A recent letter from the deans of law schools across the country 
describes Ms. Kagan as ``a superb and successful dean'' who ``revealed 
a strong and consistent aptitude for forging coalitions that achieved 
smart and sensible solutions, often in the face of insoluble 
conflict.''
  Harvard professor Charles Fried captured the thoughts of many of Ms. 
Kagan's Harvard colleagues when he described her as someone who had a 
``masterful'' ability to work well with diverse faculty.
  Ms. Kagan's intellect and work ethic caught the attention of 
President Obama when she was tapped to serve as Solicitor General. She 
is the first woman to hold this position which is often referred to as 
the 10th Justice of the Court. During her tenure, Solicitor General 
Kagan has filed 66 briefs and has argued numerous times before the 
Court. I can't imagine better training for a position on the Court than 
the experience gained by a Solicitor General. Elena Kagan has publicly 
demonstrated her ability to critically analyze the law and advocate 
forcefully at the level demanded by our Nation's highest Court.
  Elena Kagan has dedicated her life to legal study. She has excelled 
as a clerk, a teacher, administrator, counsel, and advocate. I know 
these experiences have given her a full understanding and appreciation 
of the Supreme Court's role in our democracy. Elena Kagan has built a 
career that shows she has the technical skills, the intellectual 
aptitude, and the personal judgment to be an extremely effective 
Justice. I look forward to the swift confirmation of a very impressive 
individual and urge all of my colleagues on both sides of the aisle to 
support her nomination.
  The ACTING PRESIDENT pro tempore. The Senator from Minnesota.
  Ms. KLOBUCHAR. Mr. President, I thank my two colleagues, Senators 
Shaheen and Stabenow, for joining me in making open arguments in favor 
of Solicitor General Kagan to be the next Associate Justice of the 
Supreme Court. If Members listened to Senator Shaheen's discussion of 
the experience of Elena Kagan, something quickly emerged: she has 
always been on the front line and has not been afraid to get into 
battle. She is the one who had to go before the Supreme Court and argue 
the Citizens United Case that basically came up with a ruling from the 
current Supreme Court with which I don't agree. The Supreme Court went 
beyond their bounds in how they interpreted election law, reversing 
decades of precedent. Yet it was Elena Kagan who was the one willing to 
stand there as Solicitor General and basically say corporations are not 
people; people are people.
  I like the thought of someone of her experience--such as intellectual 
heavyweight--getting on the Court to basically match Justice Roberts.
  As Senator Shaheen has pointed out, she as consensus-building skills 
in addition to that. She is someone who has been able to bring together 
people of diverse views. With such a divided Court, as we see right 
now, I think it is going to be very helpful--if she gets through our 
process, which I believe she will--to have her on that Court. She also 
is a trailblazer.
  She was the first woman dean at Harvard Law School in their 186-year 
history. In 2009 she became the first woman to serve as Solicitor 
General. As has been pointed out, she has also been a law professor, a 
member of the White House Counsel's Office, and a domestic policy 
adviser to President Clinton.
  When I look at her resume, I notice two things: The first is that she 
has practical experience thinking about the impact of laws and policies 
on the lives of ordinary Americans. When you are involved in 
considering the nitty-gritty details of policies--as has emerged, as we 
look at all the thousands and thousands of documents she has given to 
the Judiciary Committee--she is someone who has been actually involved 
in crafting those ideas, those policies. When you have to figure out, 
as she has, whether to compromise or hold firm on a piece of 
legislation, you have to know exactly what the consequences of your 
recommendations will be. You have to think about the lives that will be 
impacted.
  The second thing I notice about her resume is that she has a track 
record of listening to different viewpoints and bringing people 
together--whether it is her legacy of helping to recruit talented 
academics to Harvard from across the political spectrum or working with 
Senators from both parties on antitobacco legislation.
  It is worth noting this is a nominee who once got a standing ovation 
from the Federalist Society when she spoke to them--that is a 
conservative legal society--during her time as a law school dean. It 
was not because she agreed with them on every substantive matter. In 
fact, she noted that at the beginning. It was because they respected 
her because she was willing to listen to other viewpoints and bring in 
other viewpoints. We need that kind of consensus builder on the Supreme 
Court of the United States.
  Finally, we have to add to her list of achievements that she managed 
to calm the factionalism and frustration for which the law school 
faculty had previously been known. I can tell you after managing 167 
lawyers it is not easy, but it is even harder to manage a number of law 
professors.
  What you come up with, when you look at her whole career, is she has 
the practical experience of reaching out to and working with peop/le 
who have different beliefs. I think that is exactly what we need on the 
Supreme Court.
  Some of my colleagues, as has been pointed out, question whether she 
is fit to be a Supreme Court Justice because she has never before been 
a judge. Well, right now every single Justice on that Supreme Court has 
been a judge. While they may have different backgrounds, they have come 
up through what is called the ``judicial monastery.'' I think the fact 
that the President has nominated someone who has been on the front 
line, deciding policies but also arguing intricate legal cases, is a 
good thing.
  As has been pointed out by Senator Shaheen, I do wonder whether these 
same colleagues who are objecting on the judicial experience issue 
would have objected to putting Chief Justice Rehnquist on the Supreme 
Court or Justice Brandeis or Justice Frankfurter. They did not have any 
judicial experience either.
  It is worth noting this opinion on the importance of judicial 
experience is not shared by at least one member of the Supreme Court 
who believes that may not quite be necessary. In a speech he gave at 
the end of May, Justice Scalia said he was ``happy to see that this 
latest nominee is not a federal judge--and not a judge at all.''
  For historical context, Justice Scalia noted when he first arrived at 
the Supreme Court in 1986, three of his colleagues had never been a 
Federal judge. Chief Justice Rehnquist came to the bench from the 
Office of Legal Counsel. Justice Byron White was Deputy Attorney 
General. Justice Lewis Powell was a private lawyer in Richmond. Beyond 
that, her current job--Solicitor General--as Senator Shaheen noted, is 
actually referred to as ``the tenth Justice'' because it is such an 
important position. She represents the people before the Supreme Court. 
That is incredibly important training for an individual nominated to 
serve on the Supreme Court.

[[Page 10781]]

  It is worth noting that the last Solicitor General who subsequently 
became a Supreme Court Justice was none other than Thurgood Marshall--
Elena Kagan's mentor and former boss.
  So I hope we can put to rest this idea that only judges are qualified 
to be Justices. That is not a standard that we have applied throughout 
history, and it is not one we should start applying today.
  Just think--and I will end with this, Mr. President--how far we have 
come. When Sandra Day O'Connor graduated from law school 50 years ago, 
the only offer she got from a law firm was for a position as a legal 
secretary. Justice Ginsburg faced similar obstacles. When she entered 
Harvard in the 1950s, she was only one of nine women in a class of more 
than 500, and one professor actually asked her to justify taking a 
place in that class that could have gone to a man. Later, she was 
passed over for a prestigious clerkship despite her impressive 
credentials.
  In the course of the more than two centuries of this great country, 
111 Justices have served on the Supreme Court. Only three have been 
women. If confirmed, Ms. Kagan would be the fourth, and for the first 
time in the history of our country three women would take their places 
on the bench when arguments are heard in the fall.
  I look forward to our Judiciary Committee hearing. I have to tell 
you, I hope my colleagues listen to what Elena Kagan has to say. When 
she came before our Judiciary Committee as a nominee for Solicitor 
General, she was very impressive. She got bipartisan support. I would 
like to see that again.
  Our job is to look at the qualifications of this nominee. Our job is 
to decide if she is competent. As Senator Graham said during the 
confirmation hearing for Justice Sotomayor, he may not have picked a 
particular nominee, he may have supported someone else for President, 
but in the end, our job is to look at their qualifications and whether 
they will serve our country well on the Supreme Court.
  I believe the answer for Elena Kagan will be yes. We are all looking 
forward to the hearings, and I urge my colleagues to come to the 
hearings with an open mind.
  Mr. President, I yield the floor.
  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. BAUCUS. 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.

                          ____________________