[Congressional Record (Bound Edition), Volume 156 (2010), Part 8]
[Senate]
[Pages 11838-11839]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       NOMINATION OF ELENA KAGAN

  Mr. LEAHY. Madam President, this morning, the Supreme Court concluded 
its work for the term and, accordingly, it was Justice John Paul 
Stevens' last day on the Court. This afternoon, the Senate Judiciary 
Committee began the hearing on the nomination of Elena Kagan to succeed 
Justice Stevens on the Supreme Court of the United States.
  Solicitor General Kagan appropriately included a tribute to Justice 
Stevens in her opening remarks. The Nation is indebted to Justice 
Stevens for his decades of service to this country, from his days as a 
Navy intelligence officer during World War II for which he was awarded 
a Bronze Star, to his contributions as a circuit judge, to his 35 years 
on our highest Court and his leadership there.
  When I visited with Justice Stevens earlier this year he shared with 
me the note President Ford had written a year before his death in which 
the President said: ``I am prepared to allow history's judgment of my 
term in office to rest (if necessary, exclusively) on my nomination 30 
years ago of John Paul Stevens to the U.S. Supreme Court.'' President 
Ford was justifiably proud of his nomination. Despite those on the far 
right who have ranted against Justice Stevens' refusal to be bound by 
narrow, conservative ideology and who have criticized his good 
judgment--just as they have Justice Sandra Day O'Connor and Justice 
David Souter--his was principled jurisprudence founded on adherence to 
the rule of law and an appreciation for the effects of decisions.
  His was the first Supreme Court nomination on which I have been 
privileged to vote. I have never regretted supporting his confirmation. 
Just as I reached across the political aisle to vote for Justice 
Stevens, Justice O'Connor, and Justice Souter, who were nominated by 
Republican Presidents, I have urged Senate Republicans to fairly 
consider President Obama's nominations.
  Justice Stevens has written important decisions upholding the power 
of Congress to pass legislation to protect hard-working Americans. He 
brought to his opinions a keen understanding of the distinct roles set 
forth in our Constitution for courts and for our democratically elected 
Congress, and a respect for both. In Gonzales v. Raich and in Tennessee 
v. Lane, Justice Stevens authored the Supreme Court's opinions 
upholding Congress' actions. I suspect these precedents will be even 
more important as the Supreme Court continues to examine laws passed by 
Congress to protect Americans from discriminatory health insurance 
policies and fraudulent Wall Street practices.
  A decade ago, the Supreme Court overreached and unnecessarily waded 
into the political thicket to award the presidency in a close election 
to George W. Bush. In his dissent, Justice Stevens lamented that the 
decision would damage the Court's reputation and it did. He noted: 
``Although we may never know with complete certainty the identity of 
the winner of this year's Presidential election, the identity of the 
loser is perfectly clear. It is the Nation's confidence in the judge as 
an impartial guardian of the rule of law.''
  While the public's memory of that partisan decision was receding, it 
came rushing back when the Supreme Court issued another election-
related decision in the Citizens United case. In Citizens United, five 
conservative, activist Justices overturned a century of law to empower 
corporations to overwhelm and distort the democratic process by using 
corporate funds to influence elections. Those five Justices substituted 
their own preferences for the judgment of Congress that had built on 
decades of legal development to pass bipartisan campaign finance reform 
legislation. In order to reach its divisive decision granting 
corporations, banks, and insurance companies new rights to the 
detriment of the voices of individual Americans, the Court overstepped 
the proper judicial role, and rejected not just the conclusions of the 
elected branches, but also its own recent precedent upholding the very 
law it chose to overturn. In one of his most powerful dissents, Justice 
Stevens noted that: ``[The] Court's ruling threatens to undermine the 
integrity of elected institutions across the nation. The path it has 
taken to reach its outcome will, I fear, do damage to this 
institution.'' He was right, again.
  I share Justice Stevens' concern for the Court's reputation. Two of 
the three branches of government are involved in campaigns and 
elections. When the American people see the third branch reaching out 
to influence those elections--as they did most recently in Arizona--
they rightly get suspicious of its impartiality. I hope that Elena 
Kagan will show the judgment and forthrightness of Justice Stevens and 
share our concern about the public's confidence in our judicial system. 
Based on her Oxford thesis almost 20 years ago, before she had even 
attended law school, I expect that she will. I hope that she will honor 
Justice Stevens' extraordinary legacy and that of the Justice for whom 
she clerked, Justice Thurgood Marshall, by so doing.
  The country needs and deserves a Supreme Court that bases its 
decisions on the law and the Constitution, not politics or an 
ideological agenda. A recent pattern of Supreme Court decisions has 
emerged by a conservative, activist majority. These opinions have 
twisted both the Constitution and the law to favor big corporations 
over the interests of hard-working Americans.
  The most recent example of this conservative activism came just last 
week in a case called Rent-a-Center v. Jackson when they distorted 
their own precedent the clear congressional intent in passing the 
Federal Arbitration Act, FAA. Congress did not intend the FAA to apply 
to employment cases and certainly did not intend involuntary and 
unconscionable provisions requiring binding mandatory arbitration to 
override civil rights protections against racial discrimination and 
retaliation, as was allowed in that case. The five Justices distorted 
the law to forbid almost all court challenges to arbitration. In doing 
so, the court stripped quintessential civil rights protections that 
Congress has passed over the last several decades for hundreds of 
thousands of Americans who work

[[Page 11839]]

under mandatory arbitration agreements. It is artifice and activism to 
the detriment of hard-working Americans who deserve their day in court.
  The law is not a game. The law is intended to serve the people--
protecting the freedom of individuals from the tyranny of government or 
the mob, and helping to organize our society for the good of all. No 
Justice should substitute his or her personal preferences and overrule 
congressional efforts passed into law to protect hard-working Americans 
pursuant to our constitutional role. Judges must approach every case 
with an open mind and a commitment to fairness and the rule of law. I 
was encouraged to hear Solicitor General Kagan voice similar views in 
her eloquent opening statement today. I hope Americans took the 
opportunity to see and hear from the nominee herself. If they did, I 
suspect that they will be supportive.
  Tomorrow each Senator on the Judiciary Committee, whether Republican 
and Democrat, will have 30 minutes to question her. I urge Senators to 
listen to Solicitor General Kagan's responses and to approach the 
hearing with the same openmindedness and impartiality that we expect 
from Supreme Court Justices.

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