[Congressional Record (Bound Edition), Volume 156 (2010), Part 9]
[Senate]
[Pages 12997-13000]
[From the U.S. Government Publishing Office, www.gpo.gov]




                            KAGAN NOMINATION

  Mr. SESSIONS. Mr. President, the week before last, we had the hearing 
on Elena Kagan for her nomination to the U.S. Supreme Court, which is a 
tremendously serious and important position. Five members of the 
Supreme Court--not just nine but only five--can redefine the meaning of 
words in our Constitution and really alter, in many ways, the very 
structure of our government. We have seen activist judges that I think 
have tended in that direction, and it is dangerous and harmful because 
judges are given lifetime appointments. They are not accountable to the 
public. They are protected. Even their salaries are not reducible while 
they serve in office. So we have to know and believe they will be 
neutral, impartial, unbiased, and will render judgments based on the 
law and the facts and not on any preconceived commitments they may have 
had.
  Ms. Kagan is now the Solicitor General of the United States. She has 
taken some sort of leave of absence in recent weeks since this 
nomination occurred, but she holds that title. The Department of 
Justice Solicitor General represents the U.S. Government in Federal 
court, usually before the Supreme Court, and in important cases before 
the courts of appeals and often is involved in setting legal policy for 
the United States and helping to advise on that. So it is important 
that the American people know, before she is confirmed--if she is 
confirmed--that she has not been involved in matters that would bias 
her and cause her not to be able to serve impartially under the law and 
under the Constitution of the United States. That is an important 
question.
  The day before yesterday, I believe, the Wall Street Journal had an 
editorial entitled ``Kagan and ObamaCare'' in which it raised questions 
about the objectivity she might bring to the Court and whether she had 
been involved legally in the discussions or drafting the ideas 
concerning the development and promotion of the health care reform bill 
so massively affecting health care in America. It raised the question: 
Should she recuse herself if that comes up, if she has been involved in 
that? I think that is a very important question.
  The seven Republican members of the Senate Judiciary Committee wrote 
yesterday and asked Ms. Kagan to give detailed explanations as to what 
extent she may have been involved in any discussions regarding the 
promotion or legality of the health care reform bill. I think we are 
entitled to that. It is an important matter.
  I see my friend Dr. Barrasso on the floor, who has been a great 
expert in our debates on health care reform. He has repeatedly 
explained how this legislation will impact health care throughout 
America. As a physician, he understands that, and he has been able to 
explain it to us in ways that any of us should be able to understand. 
In fact, he gave us some very serious warnings about the fact that the 
promises made for this legislation were not legitimate, weren't real, 
weren't accurate, and in study after study and report after report that 
has come out, Senator-Dr. Barrasso has been proven correct. The 
warnings he gave us that it is not going to reduce costs and that other 
difficulties will arise have been proven true--too much, in fact--and 
it is a matter of real seriousness.
  So I guess I wish to say that a judge should recuse himself or 
herself if their impartiality might reasonably be questioned on any 
matter that came before them.
  I believe Dr. Barrasso has raised previously his concern about what 
it really means if the U.S. Government tells an individual American 
citizen who is minding his own business that he has to have an 
insurance policy. I will recognize him at this point and ask him to at 
least share his thoughts on that important issue and why he believes 
having a fair judge on the Supreme Court is important.
  The ACTING PRESIDENT pro tempore. The Senator from Wyoming.
  Mr. BARRASSO. Thank you very much, Mr. President.
  I come to the floor today with my friend and colleague because I have 
just gotten back from a week of traveling all across the State of 
Wyoming, a beautiful State this time of year. People are out and at 
parades. I had a chance to visit at several senior centers. The 
question that continued to come up was, Can the government force me to 
buy health insurance?
  A lot of people in Wyoming carry their copy of the Constitution with 
them. They carry it in their breast pocket. They carry it with them. It 
is in the pickup truck. It is with them all the time. They continue to 
look to the 10th amendment, which says:


[[Page 12998]]

       The powers not delegated to the United States by the 
     Constitution, nor prohibited by it to the States, are 
     reserved to the States respectively, or to the people.

  The people quote that. It just makes sense to the people of Wyoming 
that Washington should not be able to come into their communities, into 
our State, into their homes, and say: You must buy this product.
  So when I see the number of States--20 now--that have filed suit 
against the Federal Government because of a new health care law, a law 
that I think is going to end up, if it is not repealed and replaced, 
being bad for patients, bad for payers, the taxpayers in the country 
and the people who pay their own health care bills as well, and bad for 
providers--it is a bill that I think is bad medicine, to the point that 
Senator Tom Coburn and I, the other physician--there are only two 
physicians who practice medicine in the U.S. Senate, and I have been 
taking care of people and their families in the State of Wyoming since 
1983--we have come up with a report called ``Bad Medicine: A Checkup on 
the New Federal Health Care Law.''
  There are people who say: I don't like this. Now we have a nominee to 
the Supreme Court who is very likely, if this works its way to the 
Supreme Court, to have an opportunity to make a ruling, a ruling for 
the people of the United States, on whether this body--this Senate, 
this House--has a right to tell the American people what product they 
must buy, whether it is health insurance, whether it is cars, whether 
it is the kind of cereal they eat for breakfast in the morning. The 
American people are very concerned.
  So I come to the floor also with this editorial from Tuesday, July 
13, this editorial entitled ``Kagan and ObamaCare,'' because the 
fundamental question is, Should this nominee recuse herself if she is, 
in fact, confirmed by this body? One might say: Well, when would 
someone recuse themselves from making a decision? Because, after all, 
she has been serving in this administration, serving this President, 
serving the President who has promoted such a piece of legislation that 
forces American citizens, forces the citizens of this country to buy a 
product.
  The editorial says:

       Recusal arises as a matter of judicial ethics if as a 
     government official she expressed an opinion on the merits of 
     the health-care litigation. This is what she would have to 
     render a judgment on were she to be confirmed for the High 
     Court.

  It goes on:

       It is also the question on which she is likely to have 
     participated given her role at the Justice Department.

  I would have to turn to my colleague who is the ranking member of the 
Judiciary Committee.
  It says as well that:

       The Solicitor General is the third ranking official at 
     Justice, its senior expert on Constitutional issues, so it's 
     hard to believe she wouldn't have been asked at least in 
     passing about a Constitutional challenge brought by so many 
     states. The debate about the suit was well underway in the 
     papers and on TV. The matter surely must have come up at 
     Attorney General Eric Holder's senior staff meetings, which 
     the Solicitor General typically attends.

  The editorial goes on to say:

       We doubt Ms. Kagan would have stayed mum about the cases in 
     internal Justice councils on grounds that Mr. Obama might 
     later nominate her to the Court. At the time the Florida suit 
     was filed on March 23, she was only one of several potential 
     nominees whose names were being floated by the White House.

  So here we have this, and that is when you get back to that opening 
paragraph I read: ``Recusal arises as a matter of judicial ethics.''
  So I say to my friend and colleague from Alabama, is this not a 
legitimate area of concern, especially in light of the fact that across 
this great country people are offended by this law? I just saw a poll 
that came out today. The popularity of this new law, which has never 
been very popular and which was forced down the throats of the American 
people, is now 7 percentage points less popular now than it was even 2 
months ago. So something exceptionally unpopular is getting even more 
unpopular. By a ratio of 2 to 1, people think it is going to raise 
their costs and lessen their quality of care.
  Mr. SESSIONS. Mr. President, let me ask the Senator, on that 
question, are the American people right or are the people who promoted 
this bill right? Are costs going up and is the quality of health care 
going down? What is the Senator's opinion?
  Mr. BARRASSO. Mr. President, I spent Friday visiting with colleagues, 
friends, patients at the Wyoming Medical Center. Across the board, 
after talking to physicians, talking to patients, talking to others in 
the hospital as well as around the State of Wyoming, people believe it 
is going to be bad for patients, those waiting to get their care; bad 
for payers, the taxpayers of this country, the individuals who are 
paying for their insurance as well; and bad for providers, the nurses 
and the doctors whom I talked to. They have incredible concerns about 
what the impact is going to be on nurses and doctors when taking care 
of patients. The patients' concerns are, are they going to get the kind 
of care they want, the kind they are accustomed to, because no matter 
where I go in Wyoming, I hear people saying: This is a bill that wasn't 
passed to help me; it was passed and forced down our throats to help 
someone else, and they are going to make me buy a product that I might 
not want to buy, according to a number of criteria the government puts 
forward.
  They may not want what the government says they have to buy, and then 
you get back to the Constitution. Does this government and does 
Congress have a right to tell the American people what they must 
purchase?
  Mr. SESSIONS. This is a fundamental question. The Constitution gives 
the U.S. Government the right to regulate interstate commerce, that is 
true. The Supreme Court, at times, has taken a most minimal effect on 
interstate commerce and says the Federal Government can regulate it. 
But I am not aware of a circumstance in which an individual in Wyoming, 
or Alabama, minding their own business and not participating in an 
interstate commerce health insurance policy in any way, and the Federal 
Government waltzes in and says you must participate in this in 
interstate commerce--you are not participating in it and they require 
that you do participate in it.
  If you believe--and there is only one view--that the Constitution is 
a government of limited power, it has only powers that are delegated to 
it--and they are enumerated powers--then have we crossed a divide here 
that we have not crossed before. That is why these lawsuits are being 
filed. They are very real. The one in Florida may be farther along than 
most of them; it is already out there. Ms. Kagan, at this very moment, 
sits as a Solicitor General of the United States--in title, if not 
fully acting--and was, I think, before this lawsuit was filed fully 
acting, and it impacts the Federal Government. The question we have 
asked that I think must be answered by her is exactly what kind of 
relationship and discussion she may have had concerning this 
legislation.
  First, I ask Senator Barrasso--and not being a lawyer can be a 
benefit in this body, but I assume from the tone of his comments that 
he is a little uneasy that this high official in the Obama 
administration--an administration that has committed the whole of its 
resources to the passing of this legislation--is now about to rise to 
the Court and would be asked to decide what could be a deciding issue 
of whether this health care bill stays law or is struck down. So 
without the niceties at this moment on recusal issues, does that make 
the Senator nervous?
  Mr. BARRASSO. The whole health care law makes me nervous. I look at 
this and say that the underpinning of this law--the thing that holds it 
together--is the mandate on the American people that everyone buy 
insurance, that everyone has to have insurance at work or through 
Medicare or Medicaid, but if none of those work, you have to buy 
insurance. It is the government telling someone they have to buy it.
  So I have great concerns when a government thinks it is so powerful, 
and this body thinks it is so powerful--more powerful than the American 
people. I reject that, and I want to make

[[Page 12999]]

sure that, as it gets to the Supreme Court, there are people on the 
Court who side with the American people and, most importantly, with the 
Constitution--what to me the tenth amendment means--and the people of 
Wyoming, which is that the government cannot come into our homes and 
say you must do this--you must buy this product.
  Mr. SESSIONS. Well, I think that is exactly correct. I will say that 
whether or not being a high official in this administration, which is 
so committed to passing this legislation, whether that in itself 
legally requires a person to recuse themselves on the Supreme Court 
from hearing such a case, I am not prepared to say at this moment, but 
it makes me uneasy.
  I believe a judge who decides that question must be impartial and 
cannot be corrupted by friendship or empathy or bias in favor of the 
person who appointed them. That is important.
  Secondly, I ask Senator Barrasso, our question goes to a more 
specific situation that could mandate recusal, and that is whether the 
nominee has participated in any discussions, strategies, or making 
legal advice designed to promote this legislation. I think that would 
be a clear situation that would require recusal.
  Also, specific questions could come up regarding to what extent have 
these lawsuits that have been filed affected her and has she expressed 
any opinions concerning the lawsuits.
  Finally, I do not believe the President is entitled to launch onto 
the Supreme Court a political loyalist who will be a legal rubberstamp 
for anything that gets proposed, whether it is the takeover of AIG or 
of automobile companies or other things that may be decided. I think we 
need to be careful about this.
  This nominee needs to answer those questions because what the Senator 
is hearing is what I hear.
  Mr. BARRASSO. I ask my colleague this, as he participated in the 
hearings and the questioning. Apparently, Ms. Kagan says she will 
recuse herself from participating in a number of cases--I think 11--on 
which she represented the government in her current job as Solicitor 
General.
  It seems that in a case such as this--the area that the President of 
the United States put all of his credibility and effort into forcing 
through this body and through the House and, in my opinion, jamming 
down the throats of the American people--if she is already going to 
recuse herself on 11 other issues, it seems to me that we should also 
get that sort of a commitment on this issue.
  As the Senator has said--and he has practiced law--recusal arises as 
a matter of judicial ethics. Now we are talking about the ethics of the 
individual involved, and the decisions that person would then make 
based on the position to which they are nominated.
  Mr. SESSIONS. I believe that is correct. The standard is, among other 
things, if your impartiality might reasonably be questioned--and many 
judges are very sensitive about this--if you own a bunch of stock and 
you have one share in a big company like GE, and a case involving GE 
comes before you, you are expected to recuse yourself, even though it 
is unlikely to have an impact on your finances. But it doesn't look 
good.
  I think we are entitled to know how sensitive this nominee is going 
to be to the dangers of her impartiality being questioned, even if her 
actions are not such that clearly, as a matter of judicial ethics, 
mandates her recusal. I think we need to talk about that, and I feel 
like the American people that we meet with, who are concerned about 
governmental overreach, who wonder if we have lost all sense of the 
limited power of this government in Washington, I believe those people 
are entitled to have absolute confidence that anybody confirmed to the 
Supreme Court will not sit on a case if they can't be impartial, or if 
their impartiality could even reasonably be questioned.
  I thank the Senator for his leadership on the issue, and I am glad we 
had this colloquy. I hope we are going to get a complete answer from 
the nominee soon about any involvement she may have had explicitly, and 
then to perhaps also inquire further about to what extent she will be 
prepared to not participate if her impartiality can be questioned.
  Mr. BARRASSO. If I can ask a final question. The final paragraph of 
this editorial that the Senator will introduce into the Record says:

       As someone who hopes to influence the Court and the law for 
     decades--

  We are talking about an appointment that could last a lifetime, 30 or 
40 years.

     Ms. Kagan should not undermine public confidence in her fair-
     mindedness by sitting in judgment on such a controversial 
     case that began when she was a senior government legal 
     official.

  It seems to me--and I ask the Senator at this time--where someone may 
be embarking on a long career on the Court, wanting to do the right 
thing and head in the right direction, that the best decision would be 
to recuse herself from this case as well, if she is confirmed, rather 
than get involved in it and potentially have an impact on her 
reputation for decades to come.
  Mr. SESSIONS. I think that is correct. I appreciate the way the Wall 
Street Journal expressed that. I think that is a legitimate position. I 
hope the nominee will take very seriously those concerns and will 
respond promptly to the questions we have asked of her.
  I ask unanimous consent that the Wall Street Journal editorial be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             [From the Wall Street Journal, July 13, 2010]

                          Kagan and ObamaCare

       Elena Kagan breezed through her recent confirmation 
     hearings, but there's some crucial unfinished business the 
     Senate should insist on before voting on her nomination to 
     the Supreme Court. To wit, she ought to recuse herself from 
     participating as a Justice in the looming legal challenges to 
     ObamaCare.
       In response to Senate queries, Ms. Kagan has said she'll 
     recuse herself from participating in 11 cases on which she 
     represented the government in her current job as Solicitor 
     General. The challenge to ObamaCare isn't one of them, though 
     the cases brought by Florida and 20 other states were filed 
     in March, well before President Obama announced her 
     nomination on May 10.
       Ms. Kagan was never asked directly at her hearings about 
     her role as SG regarding the healthcare lawsuits. The closest 
     anyone came was this question from Oklahoma Republican Tom 
     Coburn: ``Was there at any time--and I'm not asking what you 
     expressed or anything else--was there at any time you were 
     asked in your present position to express an opinion on the 
     merits of the health-care bill?''
       Ms. Kagan: ``There was not.''
       Regarding a potential recusal, that's not the right 
     question. Ms. Kagan was unlikely to have been consulted on 
     the merits of health-care policy, and even if she did express 
     an opinion on policy this would not be grounds for recusal. 
     The legal precedents on that are clear.
       Recusal arises as a matter of judicial ethics if as a 
     government official she expressed an opinion on the merits of 
     the health-care litigation. This is what she would have to 
     render a judgment on were she to be confirmed for the High 
     Court. It is also the question on which she is likely to have 
     participated given her role at the Justice Department.
       The SG is the third ranking official at Justice, and its 
     senior expert on Constitutional issues, so it's hard to 
     believe she wouldn't have been asked at least in passing 
     about a Constitutional challenge brought by so many states. 
     The debate about the suit was well underway in the papers and 
     on TV. The matter surely must have come up at Attorney 
     General Eric Holder's senior staff meetings, which the SG 
     typically attends.
       We doubt Ms. Kagan would have stayed mum about the cases in 
     internal Justice councils on grounds that Mr. Obama might 
     later nominate her to the Court. At the time the Florida suit 
     was filed on March 23, she was only one of several potential 
     nominees whose names were being floated by the White House.
       Under federal law (28 U.S.C., 455(b)(3)), judges who have 
     served in government must recuse themselves when they have 
     ``participated as counsel, adviser or material witness 
     concerning the proceeding or expressed an opinion concerning 
     the merits of the particular case in controversy.''
       Though their public chance has passed, Senators can still 
     submit written questions to Ms. Kagan for the record. We hope 
     someone asks her directly whether the legal challenges to 
     ObamaCare ever arose in her presence at Justice, whether she 
     was ever asked

[[Page 13000]]

     her views, and what she said or wrote about the cases.
       We also think there are grounds for recusal based on her 
     response during her Senate hearings on the substance of the 
     state legal challenge. The Florida case boils down to whether 
     Congress can compel individuals to buy health insurance under 
     the Commerce Clause. Ms. Kagan danced around the history of 
     Commerce Clause jurisprudence, but in one response to Senator 
     Coburn she did betray a bias for a very expansive reading of 
     Congress's power.
       The Commerce Clause has ``been interpreted to apply to 
     regulation of any instruments or instrumentalities or 
     channels of commerce,'' she said, ``but it's also been 
     applied to anything that would substantially affect 
     interstate commerce.'' Anything? This is the core question in 
     the Florida case. If she already believes that the Commerce 
     Clause justifies anything that substantially affects 
     interstate commerce, then she has all but prejudged the 
     individual mandate question.
       A federal judge is required by law to recuse himself ``in 
     any proceeding in which his impartiality might reasonably be 
     questioned.'' This has been interpreted to mean that the mere 
     public expression of a legal opinion isn't disqualifying. But 
     this is no routine case.
       Ms. Kagan would sit as Mr. Obama's nominee on the nation's 
     highest Court on a case of momentous Constitutional 
     importance. If there is any chance that the public will 
     perceive her to have prejudged the case, or rubber-stamped 
     the views of the President who appointed her, she will damage 
     her own credibility as a Justice and that of the entire 
     Court.
       As someone who hopes to influence the Court and the law for 
     decades, Ms. Kagan should not undermine public confidence in 
     her fair-mindedness by sitting in judgment on such a 
     controversial case that began when she was a senior 
     government legal official.

  The ACTING PRESIDENT pro tempore. The Senator from Washington is 
recognized.
  Mrs. MURRAY. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

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