[Congressional Record (Bound Edition), Volume 156 (2010), Part 9]
[Senate]
[Pages 12770-12773]
[From the U.S. Government Publishing Office, www.gpo.gov]




                            KAGAN NOMINATION

  Mr. DURBIN. Mr. President, the Senate is returning to Washington 
after the Fourth of July holiday recess. The week before we left town, 
in the Senate Judiciary Committee, we held a hearing for President 
Obama's Supreme Court nominee, Elena Kagan. The hearing lasted 4 days. 
The nominee responded to 695 questions. I wish to commend, in 
particular, the chairman of that committee, Senator Patrick Leahy, and 
the ranking member, Senator Jeff Sessions of Alabama. It was a fair and 
respectful hearing.

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  Last year President Obama made history with his nomination of Sonia 
Sotomayor as the first Hispanic to serve on the Supreme Court. Elena 
Kagan is also an historic nominee. Last year she became our Nation's 
first female Solicitor General. That, of course, is the attorney 
representing the United States of America before the highest Court in 
our land, the Supreme Court.
  If she is confirmed to serve on the Supreme Court, it would make the 
first time in our Nation's history that three women have served 
together on the highest court in the land. That is clearly a mark of 
social progress in this great Nation.
  Elena Kagan, of course, will be replacing a legal legend, Justice 
John Paul Stevens. A lifetime in the law and the courage to speak his 
mind made Justice Stevens a national treasure. So what did we learn 
from this hearing on Elena Kagan? First, we learned she is a highly 
intelligent, very charming and very funny, at times, individual.
  She demonstrated a thorough knowledge of the law, an ability to try 
and find common ground on difficult issues, and, as I mentioned, a very 
healthy sense of humor. These are qualities that served her well as 
Solicitor General of the United States, as the first woman to serve as 
Dean of the Harvard Law School, as a law school professor, and as a 
policy aide to former President William Clinton. They are valuable 
qualities that will serve her well on the Supreme Court.
  Secondly, we learned that Elena Kagan has great respect for 
Congressional action and judicial precedent. In her opening statement 
she said:

       The Supreme Court is a wondrous institution. But the time I 
     spent in the other branches of government remind me that it 
     must also be a modest one, properly deferential to the 
     decisions of the American people and their elected 
     representatives.

  In response to a question from Senator Dianne Feinstein of 
California, General Kagan said:

       The operating presumption of our legal system is that a 
     judge respects precedent, and I think that that's an 
     enormously important principle of the legal system.

  These qualities, a respect for precedent and deference to Congress, 
are essential for a Supreme Court Justice to have but, unfortunately, 
they have been in short supply with our current Court. In case after 
case in recent years, the Supreme Court has overturned longstanding 
precedents and thumbed its nose at congressional decisions.
  In many of these cases, the five conservative Justices on the Court 
have acted not as neutral umpires, as one described himself, but as 
designated hitters going to bat, unfortunately, for some of the special 
interests in America.
  Let's take a couple of examples: The case of Citizens United versus 
the Federal Elections Commission, which was handed down by the Supreme 
Court earlier this year. In that case, a conservative 5-4 majority of 
the Court demanded to hear arguments on an issue that was not even 
raised by the parties in the case.
  They reversed decades of Supreme Court decisions that preceded them. 
They ignored the will of Congress in passing the historic bipartisan 
McCain-Feingold campaign finance law, and they ruled that corporations 
and special interest groups could spend unlimited amounts of money to 
affect elections.
  This decision by the Supreme Court, unfortunately, has the power to 
drown out the voices of average Americans in our elections. Justice 
Stevens, now retiring, whose vacancy we are seeking to fill, wrote 
these powerful words in the dissent:

       Essentially, five judges were unhappy with the limited 
     nature of the case before us, so they changed the case to 
     give themselves an opportunity to change the law.

  Then there was the case of Lilly Ledbetter, who testified at the 
Kagan hearing about her experience working as a manager at the Goodyear 
tire plant in Gadsden, AL. Lilly Ledbetter worked there for 19 years 
but she did not know during that entire period of time she was being 
paid less than her male colleagues who did exactly the same job. It was 
not until she was close to retirement that somebody finally told her 
how much the men working alongside of her, doing exactly the same work, 
were being paid. So as a result of that knowledge, she decided to bring 
a case to ask for compensation, for this clear case of gender 
discrimination, where a woman was being paid less just because she was 
a woman.
  The Supreme Court came down with an amazing decision in the Lilly 
Ledbetter case. Even though she had won her case before a jury, she 
went before the Supreme Court and this familiar five-Justice group of 
conservative Justices said she should have filed the case alleging 
discrimination in pay within 180 days after the initial act of 
discrimination; in other words, within 6 months after the first male 
colleague was paid more than she was paid, she should have filed a case 
for discrimination.
  You would think the Supreme Court Justices would at least understand 
that in most American workplaces, a worker does not know what his 
coworkers are being paid. It is not published, certainly is not 
published when it comes to managers' salaries. It is rare that anybody 
comes to know that.
  So Lilly Ledbetter, a victim of discrimination for years, did not 
know the man working right next to her, doing the same job, is being 
paid more. The Supreme Court said: Oh, that was a fatal flaw. The 
technical fact that she waited more than 6 months to file her 
discrimination case meant she was not entitled to recover.
  By making that decision, the Supreme Court, which was guided by the 
principle of avoiding judicial activism and avoiding doing things on 
their own that violated precedent and congressional acts, decided to 
overturn judicial precedents and the express intent of Congress when it 
passed the Civil Rights Act of 1991.
  We also heard at the Kagan hearing from Jack Gross. He was another 
victim of discrimination who helped put a human face on the 
conservative judicial activism on the current Supreme Court. Mr. Gross 
is not one of these wild-eyed liberals. He was a claims adjuster for an 
insurance company in southern Iowa for over 23 years. I know the 
company well. A pretty conservative lot runs that company.
  When he and all of the other supervisors at his company over the age 
of 50 were demoted and replaced with younger workers, would that raise 
a question in your mind if you had been Mr. Gross, that perhaps your 
age had something to do with it? Like Ms. Ledbetter, Mr. Gross, who had 
been a loyal employee of this company for over 20 years, won a jury 
verdict, a jury verdict which said, yes, that company made a decision 
to discriminate against Jack Gross because of his age.
  He ended up having that jury decision tossed out of Court at the 
Supreme Court right across the street. It is worth noting that very few 
discrimination victims win a jury verdict. Jack Gross did. Most victims 
have their cases dismissed or settled long before it reaches that 
point. But in the case of Jack Gross, the Supreme Court decided to 
invent a new legal standard that stacks the deck against victims of 
discrimination even more.
  Here is what Justice Stevens wrote in the dissent to that case:

       The majority's inattention to prudential Court practices is 
     matched by its utter disregard of our precedent and Congress' 
     intent.

  I think Elena Kagan's hearing demonstrates she will be a Justice who, 
like the Justice she will replace, John Paul Stevens, will give proper 
deference to Congress and respect to decisions of the Court.
  There was a third lesson from the Kagan hearing. I found this 
surprising. It was opening day. Here were Members of the Senate serving 
on the Judiciary Committee who were stating what they hoped to see in a 
Supreme Court Justice. Many of them singled out a man whom I consider 
to be one of the real champions of justice and liberty who served on 
the Court. Some of my colleagues across the aisle seemed to have 
forgotten in their opening statements the amazing legacy of Supreme 
Court Justice Thurgood Marshall, a Justice for whom Elena Kagan had 
clerked. They truly went to a level that was

[[Page 12772]]

close to guilt by association in attacking Elena Kagan because she had 
worked for Justice Marshall.
  One of my Republican colleagues called Justice Marshall ``the epitome 
of a results-oriented judge'' and ``not what I would consider to be 
mainstream'' and someone who believed that ``the Supreme Court exists 
to advance the agenda of certain classes of litigants.''
  Another Republican Senator called Thurgood Marshall a ``judicial 
activist.'' I thought those characterizations were beyond the pale and 
said so in my opening statement. Thurgood Marshall is an American hero. 
The airport in Baltimore is named after him and many schools. He 
dedicated his life to breaking down barriers of racial discrimination 
that had haunted our country for centuries. Thurgood Marshall was the 
attorney who stood right across the street before the Supreme Court and 
argued the case of Brown v. Board of Education. That case, 56 years 
ago, did more to change America and move us toward equality than any 
modern decision by the Court.
  Thurgood Marshall won more victories in the Supreme Court than nearly 
anyone else in the history of the United States. As an appeals court 
judge, Thurgood Marshall wrote 112 opinions, none of which were 
overturned by a higher court. Some may dismiss Justice Marshall's 
pioneering work on civil rights as an example of empathy, a word which, 
unfortunately, has been given a negative connotation by some in this 
Chamber. They may suggest that somehow, as a Black man who had been a 
victim of discrimination himself, he had more passion when it came to 
certain issues. I say to that, thank goodness.
  I don't consider Brown v. Board of Education to be results-oriented 
judging. I consider it a courageous judgment that embraced our common 
humanity and moved America dramatically forward. We should be grateful 
as a nation for the tenacity, integrity, and values of Thurgood 
Marshall.
  In the words of John Payne, director-general of the NAACP Legal 
Defense and Educational Fund:

       Thurgood Marshall helped America understand what democracy 
     really means.

  Some of Elena Kagan's critics suggest she will have the same views 
and philosophy as Justice Marshall because she served as his law clerk. 
In my personal opinion, we should be so fortunate. General Kagan made 
it clear at her hearing that she was determined to be her own person, 
not to assume the persona of someone for whom she has worked in the 
past. Moreover, it is wrong to suggest that a Supreme Court law clerk 
is going to have the same views as the Justice for whom he or she 
clerked.
  Exhibit A is Douglas Ginsburg. He sits on the D.C. Circuit and is one 
of the most conservative judges in America. Judge Ginsburg was 
nominated to the Supreme Court by President Reagan in 1987, after 
Robert Bork's nomination was defeated. Judge Ginsburg later withdrew 
his nomination, but I think it is safe to say he does not share the 
judicial philosophy of Justice Thurgood Marshall whom he also served as 
a law clerk.
  A fourth lesson from the Kagan hearing is, if you don't have a good 
case against the nominee on the merits, then pick an emotional issue 
and appeal on that ground. That is how some of my colleagues on the 
other side of the aisle handled the issue of military recruitment at 
the Harvard Law School when General Kagan was the law school dean. One 
of my Republican colleagues accused General Kagan of having ``a 
hostility to the military'' and alleged she broke the law in briefly 
denying military access to the career services office. These 
accusations are not correct. Dean Kagan bent over backwards to show 
respect and appreciation for the U.S. military and to comply with the 
1996 Solomon amendment that required the Defense Department to deny 
Federal funding to universities that prohibited military recruitment on 
campus. Yes, Dean Kagan was a vocal opponent of the don't ask-don't 
tell policy. Most Members of Congress and a sizable majority of 
Americans no longer support that discriminatory policy. But that does 
not make Elena Kagan antimilitary.
  Don't take my word for it. Listen to the words of Robert Merrill, the 
only Active-Duty servicemember to receive a law degree from Harvard 
while Elena Kagan was dean. Here is what he wrote in the Washington 
Post:

       If Elena Kagan is ``anti-military,'' she certainly didn't 
     show it. She treated the veterans at Harvard like VIPs, and 
     she was a fervent advocate of our veterans association. She 
     was decidedly against ``don't ask, don't tell,'' but that 
     never affected her treatment of those who had served. . . . 
     If anything, Kagan was an activist in ensuring that military 
     recruiters had viable access to students and facilities 
     despite the official ban. A Boston-area recruiter later told 
     me that the biggest hurdle he faced recruiting at Harvard Law 
     was trying to answer the students' strangely intellectual 
     questions.

  During her 6 years as dean at Harvard, the military had full access 
to career services offices except for one semester after an appellate 
court struck down the Solomon amendment as unconstitutional. After that 
court decision, Dean Kagan decided to reinstate a system that had been 
in place nearly a quarter of a century prior to her becoming dean and 
that had been deemed to be in compliance with the law. Under that 
system, military recruiters were given access to students and the 
campus through the Harvard student veterans association.
  During the year of Dean Kagan's deanship, when access to the Office 
of Career Services was briefly denied, more graduating students at 
Harvard joined the military than any year of the past decade.
  When my Republican colleagues on the Judiciary Committee realized 
they weren't getting much traction at the Kagan hearing with their 
arguments about Harvard military recruiting, they brought out another 
theme. They said General Kagan is just too political to be a Supreme 
Court Justice because she spent 4 years working in the Clinton White 
House.
  Considering that Elena Kagan's legal career spans nearly 25 years, 
this 4-year argument seems a little bit hollow and stretched. In any 
event, all three of President Bush's Supreme Court nominees--John 
Roberts, Samuel Alito, and Harriet Miers--had worked in political 
positions in the White House and Justice Department under Republican 
Presidents. I can't recall a single time a Republican Senator said that 
President Bush's nominees were too political.
  Chief Justice Roberts worked in the Reagan White House for 4 years 
and as a political appointee in the Justice Department for 5 years. 
Justice Alito spent 9 years working in the Reagan and George H.W. Bush 
Justice Departments. Harriet Miers held a series of positions under 
President George W. Bush--for 5 years in the Bush White House and 6 
years when the President had been Governor of Texas. There was not a 
single word raised on the Republican side of the aisle about how 
political those Republican nominees were. Now they are trying to raise 
an argument against Elena Kagan that they didn't see in previous 
nominees.
  I hope my colleagues will heed the advice of a man they extol when we 
discuss judicial nominations: President Bush's former judicial nominee, 
Miguel Estrada. Mr. Estrada wrote a letter on behalf of Elena Kagan, 
one of his fellow classmates at Harvard Law School. This is what he 
said:

       I write in support of Elena Kagan's confirmation as an 
     Associate Justice of the Supreme Court of the United States. 
     . . . Elena possesses a formidable intellect, an exemplary 
     temperament and a rare ability to disagree without being 
     disagreeable. She is calm under fire and mature and 
     deliberate in her judgments. . . . Elena Kagan is an 
     impeccably qualified nominee. Like Louis Brandeis, Felix 
     Frankfurter, Robert Jackson, Byron White, Lewis Powell and 
     William Rehnquist--none of whom arrived at the Court with 
     prior judicial service--she could become one of our great 
     Justices.

  That was Miguel Estrada, a person whose virtues have been praised at 
great length by Republicans in the Senate. We also received a joint 
letter of support for Elena Kagan from the last eight Solicitor 
Generals of the United States, including such conservative icons as 
Kenneth Starr, Ted Olson, and Charles Fried.

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  In our service to the Senate, we are called on to cast hundreds if 
not thousands of votes. Our late departed colleague, Robert C. Byrd, 
cast 18,000 votes. As I look back on my career of service in the House 
and the Senate, I can remember a few votes. I certainly remember every 
single vote I cast when I was asked to decide whether America should go 
to war. Those are the votes that keep one up at night wondering what is 
the right thing to do for the Nation; what is the right thing to do for 
one's own conscience. We know at the end of the day when we cast that 
vote, if we go forward people will die. We hope the enemy will be the 
victims, but we know even under the best of circumstances, innocent 
Americans will also die. Those votes we think over for a long time.
  In the Senate, next to votes on war, votes on Supreme Court Justices 
reach that same level of gravity and importance. We realize that man or 
woman we choose to be on the Court is likely to be there after our 
Senate careers and after we are long forgotten; that those nine people 
sitting across the street, when five come together, can make decisions 
that can impact America for generations to come. That is why it is so 
critically important for us to take a careful review and to take a 
deliberate approach when it comes to the selection of a Supreme Court 
Justice.
  When the time comes--and I hope it comes soon, maybe within the next 
week or two--I will be proud to cast a vote in favor of the nomination 
of Elena Kagan to the Supreme Court. I sincerely hope she receives the 
bipartisan support she richly deserves.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Kaufman). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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