[Congressional Record (Bound Edition), Volume 156 (2010), Part 9]
[Senate]
[Pages 12812-12813]
[From the U.S. Government Publishing Office, www.gpo.gov]




                            KAGAN NOMINATION

  Mr. KAUFMAN. Mr. President, I rise in support of the nomination of 
Solicitor General Elena Kagan to be an Associate Justice on the U.S. 
Supreme Court.
  Last month, the Judiciary Committee held 4 days of hearings on 
General Kagan's nomination, including 2 very full days of testimony 
from the nominee herself.
  I came away from the hearings deeply impressed with General Kagan's 
intellect, thoughtfulness, demeanor, and integrity. These 
characteristics, already plainly evident in her lifetime of 
accomplishment, were on full display during her testimony.
  Last year, when Justice Souter announced his retirement, and again 
when Justice Stevens announced his retirement this April, I suggested 
that the Court would benefit from a broader range of experience among 
its members.
  My concern was not just the relative lack of women or racial or 
ethnic minorities on our Federal courts, though that deficit remains 
glaring.
  I was noting the fact that the current Justices all share very 
similar professional backgrounds. Every one of them served as a Federal 
circuit court judge before being appointed to the Supreme Court.
  Not one of them has ever run for political office, like Sandra Day 
O'Connor or Earl Warren or Hugo Black.
  I am heartened by what this nominee would bring to the Court based on 
her experience working in and with all three branches of government, 
the skills she developed running a complex institution like Harvard Law 
School, and yes, the prospect of her being the fourth woman to serve on 
our Nation's highest court.
  Some pundits, and some Senators, have suggested her lack of judicial 
experience is somehow a liability. I could not disagree more.
  While prior judicial experience can be valuable, the Court should 
have a broader range of perspectives than can be gleaned from the 
appellate bench.
  In the history of the U.S. Supreme Court, more than one-third of the 
Justices have had no prior judicial experience before being nominated. 
And a nominee's lack of judicial experience has certainly been no 
barrier to success.
  When Woodrow Wilson nominated Louis Brandeis in 1916, many objected 
on the ground that he had never served on the bench.
  Over his 23-year career, however, Justice Brandeis proved to be one 
of the Court's greatest members. His opinions exemplify judicial 
restraint and his approach still resonates in our judicial thinking 
more than 70 years after his retirement.
  Felix Frankfurter, William Douglas, Robert Jackson, Byron White, 
Lewis Powell, Harlan Fiske Stone, Earl Warren and William Rehnquist all 
became Justices without having previously been judges. They certainly 
all had distinguished careers on the Supreme Court.
  As Justice Frankfurter wrote about judicial experience in 1957:

       One is entitled to say without qualification that the 
     correlation between prior judicial experience and fitness for 
     the functions of the Supreme Court is zero.

  We have all now had the opportunity to review General Kagan's 
extensive record as a lawyer, a policy adviser, and administrator, and 
to listen to her thoughtful and candid answers to a wide range of 
probing questions.
  Throughout her career, she has consistently demonstrated the all-too-
rare combination of a first-rate intellect and an intensely pragmatic 
approach to identifying and solving problems.
  Last summer, during then-Judge Sotomayor's confirmation hearing, and 
again during General Kagan's hearing, I focused on the current Court's 
handling of business cases.
  I am convinced, by education, experience, and inclination, that the 
integrity of our capital markets, along with our democratic traditions, 
is what makes America great.
  Today, however, while we have a real need for significant financial 
regulatory reform, we also face a Supreme Court too prone to disregard 
congressional policy choices.
  My concern is that a Court resistant to Federal Government 
involvement in and regulation of markets could undermine those efforts. 
I am not suggesting that we face a return to ``a New-Deal-era Court--a 
Court determined to strike down regulatory reform as beyond the 
authority of Congress.
  But a Court predisposed against government regulation might chip away 
at the edges of reform, materially reducing its effectiveness.
  That is why my questioning of Solicitor General Kagan focused on 
business cases and on her philosophy concerning deference to 
congressional judgment.
  During the hearing, she emphasized the importance of ``judicial 
deference to the legislative process.'' She also acknowledged 
Congress's ``broad authority'' under the commerce clause to regulate 
the financial markets.

[[Page 12813]]

  Finally, she stated emphatically her views on results-oriented 
judging. I really liked what she said on this point, so I'm going to 
quote it in full:

       I think results-oriented judging is pretty much the worst 
     kind of judging there is. I mean the worst thing that you can 
     say about a judge is that he or she is results-oriented. It 
     suggests that a judge is kind of picking sides irrespective 
     of what the law requires, and that's the absolute antithesis 
     of what a judge should be doing, that the judge should be 
     trying to figure out as best she can what the law does 
     require, and not going in and saying, ``You know, I don't 
     really care about the law, you know, this side should win.'' 
     So to be a results-oriented judge is the worst kind of judge 
     you can be.

  Based on General Kagan's ability to communicate her thoughts and 
ideas during the committee hearings last month, I am confident that 
other Justices and, by extension, the entire Court, will benefit by the 
addition of her voice to their deliberations.
  One of the aspirations of the American judicial system is that it 
render justice equally to ordinary citizens and to the most powerful.
  We need Justices on the Supreme Court who not only understand that 
aspiration but also are committed to making it a reality. I believe 
Elena Kagan, through her truly impressive record of accomplishment, and 
through the entire confirmation process, has demonstrated that 
commitment.
  In short, this nominee has all the qualities necessary to serve well 
all Americans, and the rule of law, on our Nation's highest court.
  I urge my colleagues to confirm her without delay.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. WHITEHOUSE. 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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