[Congressional Record (Bound Edition), Volume 156 (2010), Part 9]
[Senate]
[Pages 12984-12985]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       NOMINATION OF ELENA KAGAN

  Mr. CARDIN. Mr. President, next week, the Senate Judiciary Committee 
will be voting on the nomination of Elena Kagan to be the next 
Associate Justice of the Supreme Court of the United States. This vote 
in the Judiciary Committee follows 4 days of hearings on her 
nomination. As the Acting President pro tempore knows, she is currently 
the Solicitor General of the United States. We not only had 4 days of 
hearings, every member of the Judiciary Committee had ample opportunity 
to ask questions and get responses from Ms. Kagan. We heard from 
outside witnesses, some who were directly affected by decisions of the 
Supreme Court of the United States. We reviewed tens of thousands of 
pages of documents.
  I pointed out during these hearings why Americans should be so 
concerned about who the next Associate Justice of the Supreme Court 
will be because the decisions of the Supreme Court affect your life. If 
you work, if you are a woman, if you vote, if you care about the air 
you breathe or the water you drink, if you are a consumer, you need to 
be concerned about the Supreme Court of the United States.
  The Constitution protects us from the abuses of power, whether those 
powers are generated by government or powerful special interests. The 
Supreme Court was designed to be the protector of our constitutional 
rights.

       We the people of the United States--

  ``We the people''--

     in Order to form a more perfect Union, establish Justice, 
     insure domestic Tranquility, provide for the common defence, 
     promote the general Welfare, and secure the Blessings of 
     Liberty to ourselves and our Posterity, do ordain and 
     establish this Constitution for the United States of America.

  The authors of the Constitution understood the timeless idea that 
justice was paramount. After questioning Solicitor General Kagan and 
listening to her testimony for a week, I am convinced she has a clear 
understanding of how profound an impact her future decisions may have 
on the lives of everyday Americans.
  Based on the hearing and the conversations I have had with her, I am 
confident she will put the interests of the American people and justice 
for the American people first, above popular opinion or politics.
  As Solicitor General Kagan said in her opening statement to the 
committee, equal justice under law ``means that everyone who comes 
before the Court--regardless of wealth or power or station--receives 
the same process and protections. . . . What it promises is nothing 
less than a fair shake for every American.''
  During the confirmation hearings, I asked Solicitor General Kagan 
about civil rights, campaign financing, and our environment. I used 
those three areas to demonstrate how important the decisions of the 
Supreme Court can be in the lives of everyday Americans. My concerns 
about recent Supreme Court decisions were an activist court that, by 
the narrowest margins--usually 5-to-4 decisions--reversed precedent, 
legislated from the bench, and ruled on the side of businesses over 
individual rights.
  In civil rights, I think the importance of the Supreme Court was 
underscored by the decision of Brown v. Board of Education which opened 
educational opportunity for the people of this Nation. I pointed out 
during the hearings before the Judiciary Committee that it was Thurgood 
Marshall, a young attorney from Baltimore, who argued that case before 
the Supreme Court and then became, as the Presiding Officer knows, the 
first African-American Justice on the Supreme Court of the United 
States, and one of his law clerks was Elena Kagan.
  Recent decisions of the Supreme Court underscore my concern as to 
whether the Supreme Court is following legal precedent to protect the 
civil rights of the people of our Nation. The Ledbetter decision dealt 
with gender equity. Here the Supreme Court, by a 5-to-4 decision, 
reversed precedent and the clear intent of Congress to deny women the 
opportunity to effectively enforce their rights for equal pay by saying 
to Ms. Ledbetter that she had to bring her case on pay discrimination 
within 180 days of the discrimination, although it was impossible for 
her to discover she was being discriminated against during that period 
of time. Now we have taken action in the Senate to reverse that, and 
President Obama signed legislation to reverse it, but the Supreme Court 
never should have ruled against American workers and women in the 
Ledbetter decision.
  I also mentioned the Gross decision which deals with age 
discrimination

[[Page 12985]]

where the Supreme Court reversed its own precedent and clear 
congressional intent to deny an effective remedy on age discrimination, 
changing the standards in order for a person to be able to bring a 
case.
  I talked about campaign finance and the Citizens United case where 
the Supreme Court, again by a 5-to-4 decision, reversed precedent, 
reversed congressional action, and allowed more corporate money into 
our election system. Corporations don't have enough power already? The 
Supreme Court gave corporations even more influence in our Federal 
election process.
  I was impressed, and I think the members of the Judiciary Committee 
were impressed, that the first case Solicitor General Kagan decided to 
argue before the Supreme Court was to try to uphold our action in 
Congress regarding campaign finance reform. I think Justice Stevens got 
it right when he said:

       Essentially, five Justices 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 . . . there 
     were principled, narrower paths that a Court that was serious 
     about judicial restraint could have taken.

  Then, in the environmental arena, I mentioned the Rapanos case where 
the Supreme Court, once again by a 5-to-4 decision, reversed the clear 
intent of Congress and legal precedent to restrict the Environmental 
Protection Agency's ability to protect the clean waters of our Nation 
under the Clean Water Act. Then, once again, in Exxon v. Baker, the 
Supreme Court just very recently restricted the amount of claims that 
can be brought in regards to polluters in the Exxon Valdez issue. That 
is of particular concern to all of us who are trying to make sure those 
who have been victimized by the BP oilspill have an effective remedy 
and that taxpayers don't have to provide bailout for the damages caused 
by BP Oil.
  Solicitor General Kagan stated, in answer to questions before us:

       Congress certainly has broad authority under the 
     Constitution to enact legislation involving the protection of 
     our environment. When Congress enacts such legislation, the 
     job of the courts is to construe it consistent with 
     Congressional intent.

  Well, that is the type of person I would like to see, and I hope all 
of us would like to see, on the Supreme Court of the United States, 
giving due deference to Congress as the legislative body under the 
Constitution. She said: The job of the courts is to construe the laws 
consistent with congressional intent.
  I am puzzled by those who have defended these Supreme Court decisions 
that have taken away our citizens' rights for civil liberties and civil 
rights and who say that corporations don't have enough power in this 
country so they need more power; who have jeopardized our environment 
and have supported those decisions, even though it reverses previous 
precedent and even though it is legislating from the courts, reversing 
congressional action. Those who profess to be against judicial activism 
have supported those decisions by the Supreme Court of the United 
States.
  I am confident Elena Kagan will follow legal precedent. She will 
respect the rights of the Congress of the United States to legislate. 
She will protect our rights against the abuses of power, whether it is 
from the government or from powerful corporate special interests. She 
will respect the rights of the people of this Nation that the 
Constitution was so well designed to deal with.
  Lastly, let me say she is well qualified to serve on the Supreme 
Court of the United States. She was the dean at Harvard Law School, 
Solicitor General of the United States, commonly referred to as the 
10th justice because of how closely she has worked with the Supreme 
Court. She has received bipartisan support from those who know her 
best. Former Solicitors General of the United States, appointed by both 
Democrats and Republicans, support her nomination to be the next 
Associate Justice of the Supreme Court of the United States. When we 
confirm her appointment, she will be one of three women to serve on the 
Supreme Court of the United States, the first time in the history of 
America and a proud moment for this body to confirm her nomination.
  Next Tuesday, I will vote to confirm Elena Kagan to be the next 
Associate Justice of the Supreme Court of the United States. I look 
forward to when each Member of the Senate will have an opportunity to 
vote on her confirmation, and I hope it will be an overwhelming 
confirmation for her to serve the American people on the Supreme Court 
of the United States.
  With that, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Nebraska.

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