August 5, 2010 CONGRESSIONAL RECORD — SENATE S6803 judges who have actually presided over the Mr. CARDIN. Mr. President, I rise ment to satisfy the claims filed by de- 14–year history of this case. today to talk about the Pigford II set- serving claimants denied participation Mr. BARRASSO. So there are issues tlement pending full action by the U.S. in the original settlement because of of policy dealing with transparency, Senate. timeliness issues. dealing with the production of records We all know that farming is a dif- After years of litigation and negotia- by the attorneys who are involved in ficult occupation. The hours are long, tion between the Department of Jus- this. When you read one of these edi- the weather is unpredictable, and the tice, which represented the USDA, and torials, the one in today’s Hill, ‘‘Un- challenge of competing in a global lawyers for the farmers, a settlement conscionable Cobell,’’ written by a law marketplace is intense. Tens of thou- was finally reached in February 2010. professor at the University of Wis- sands of Black farmers have had to face The Pigford II settlement agreement consin-Madison: all those normal challenges. Trag- will provide $1.25 billion, which is con- Number of published court opinions in the ically, they have also had to deal with tingent on appropriation by Congress, case: 80-plus a challenge that was unique to them to African-American farmers who can Amount awarded to plaintiffs by courts at based solely on race. The U.S. Depart- show they suffered racial discrimina- present: $0 ment of Agriculture, USDA, was dis- tion in USDA farm loan programs. Amount to attorneys under settlement: criminating against them. Once the money is appropriated farm- $100 Million. . . . More than 12 years ago, Black farm- ers can pursue their individual claims Amount to each account holder under through the same nonjudicial process [this] settlement: ers across America brought a class ac- tion suit against the USDA for racial used in the first case. We are talking now about those who discrimination. The history of that dis- To address this funding need, Presi- have been affected by this— crimination is a sad one, and it is well dent Obama included $1.15 billion in ad- $1,000.00 documented. Farmers, like all busi- ditional funding for his fiscal year 2010 What an incredible disparity. nesses, need access to loans. They need and fiscal year 2011 budgets. Both Well, if we were all to take the time to borrow money for expensive equip- Chambers of Congress have worked to to look through these two editorials, ment and they need funding to help pass appropriations to fulfill the settle- the changes to the settlement I have them when droughts strike or when ment agreement since February. The been proposing would not only seem markets collapse. The Congress has House of Representatives has passed reasonable, they would be absolutely recognized this need for decades, and funding language for the Pigford case necessary. They point out several real we have established special loan pro- twice; once as part of the war supple- problems with the settlement, includ- grams in the USDA to support these mental and the other on a tax extend- ing the way the attorneys’ fees are special needs. But when it came to ers bill. But the Senate has not been handled. I am continuing to work with lending, tens of thousands of Black able to do the same. Despite the major- my colleagues on dealing with that. farmers were the victims of systemic ity leader’s efforts in finding ways to These are the blunt facts. discrimination. During the 1980s and pay for the legislation and move the So I agree with my colleague from 1990s, the average processing time for a legislation for full Senate consider- North Dakota, the problems with the loan application by White farmers was ation, we have been unable to proceed Cobell settlement are by no means in- 30 days; the average time for a loan ap- to a rollcall vote. This bill has come surmountable. They can and they must plication by Black farmers was 387 before the Senate a half dozen times. be resolved. In fact, I do not think it days. Black farmers had to wait 12 There are no known objections to the would be difficult to resolve the dif- times as long to receive a loan. This settlement, yet we have failed to pass ferences we have regarding the Cobell discrimination earned the USDA the the funding therefore denying the proc- settlement. We can sit down, and we regrettable nickname ‘‘the Last Plan- ess for funding to these farmers who were discriminated against by our own plan to do that, to discuss the issues tation.’’ directly. I think we can get beyond this Black farmers finally sought justice government. We must move to appropriate these impasse, and that is what I am com- through a class action lawsuit in 1997. funds. The settlement that was reached mitted to do. More than 20,000 farmers initiated is only valid until August 18, 2010. Fail- I yield the floor. claims citing racial discrimination in ure to appropriate the money by then The PRESIDING OFFICER. The Sen- the USDA farm loan programs. Two could cause the agreement to be void- ator from North Dakota is recognized. years after the action was initiated, ed. William Gladstone once said that Mr. DORGAN. Mr. President, as I in- the U.S. District Court for the District ‘‘justice delayed is justice denied.’’ Let dicated, I intend to withhold the unani- of Columbia entered a consent decree us not be in the business of delaying mous consent request because it would approving a class action settlement to and denying justice for African-Amer- clearly be objected to. There are some compensate these farmers for years of ican farmers. Let us be in the business people who disagree with the method racial discrimination by the USDA. of allowing the justice system to work by which this settlement would be paid Each farmer who could prove discrimi- and provide them with adequate re- for. nation was entitled to damages. Out of dress. I urge my colleagues to support But I also wish to mention that I the initial 20,000 farmers, 15,000 were this funding. have some hope that later today, fi- meritorious in the claims they The PRESIDING OFFICER. The Sen- nally at long last, we may be able to brought. ator from Connecticut is recognized. come to the floor of the Senate with an As the legal process continued, addi- Mr. DODD. Mr. President, I think my agreement that would be able to with- tional farmers began to join the class friends and colleagues on the other side stand the unanimous consent request. action and filed their own claims. Ap- have blocked out some time. If they If we do that before we break, we would proximately 80,000 farmers eventually would not mind, I would be very grate- have resolved a very longstanding brought claims. Unfortunately, many ful if I could take 5 or 6 minutes to issue, not just 15 years of litigation, or of these farmers did not know about make some comments about the Kagan a century of mismanagement, but also the class action suit, and by the time nomination. I see heads nodding af- since last December, when this agree- they learned of its existence, the filing firmatively, so I appreciate it. ment was reached and the Congress deadline had passed. was given time to approve it, but then In 2008, Congress recognizing the in- f that deadline had to be extended six justice of stopping 80 percent or more EXECUTIVE SESSION times. At long last, perhaps we will be of the farmers who potentially suffered able to decide we can do this together. discrimination by our government—de- I very much appreciate the work Sen- cided to take action and created a new NOMINATION OF ELENA KAGAN TO ator BARRASSO is doing and Senator cause of action for farmers previously BE AN ASSOCIATE JUSTICE OF KYL and Senator BAUCUS and others. denied access to justice. In the 2008 THE SUPREME COURT OF THE My hope is that later this afternoon I farm bill, with bipartisan support, Con- UNITED STATES—Resumed will be able to come to the floor with gress included $100 million for pay- The PRESIDING OFFICER. The Sen- such a unanimous consent request. ments and debt relief as a downpay- ate will proceed to executive session to

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The Sen- Law School in 1986, Elena Kagan has hopefully put those unfounded doubts ator from Connecticut. enjoyed an illustrious legal and aca- over her experience to rest. Mr. DODD. Mr. President, I rise this demic career. Moving on to the two remaining afternoon to express my very strong After her graduation, Solicitor Gen- parts of my test, Elena Kagan once support for the nomination of Solicitor eral Kagan had the honor of clerking again proves she would make an excel- General Elena Kagan to serve as an As- for two extremely distinguished and lent addition to our Nation’s highest sociate Justice on the U.S. Supreme highly influential Federal judges: U.S. Court. Court. I would like to thank Chairman Court of Appeals for the District of Co- As to her character, her graceful per- LEAHY and Ranking Member SESSIONS lumbia circuit judge Abner Mikva, formance before the Judiciary Com- for their work during the Judiciary with whom I served in the House of mittee and extensive list of enthusi- Committee’s recent hearings, as well as Representatives, and has been a great astic recommendations from Demo- Majority Leader REID for moving Solic- friend of mine for many years; and crats, Republicans, and others across itor General Kagan’s nomination Thurgood Marshall, the Nation’s first the entire spectrum reveal her to be a through the Senate confirmation proc- African-American Supreme Court Jus- person of the utmost integrity, profes- ess as he has. tice. sionalism, and sound judgment. They There are very few powers exercised Subsequently, after nearly a decade also reveal, I think, a key aspect of her by this body that are more important of legal work in the private sector, as legal philosophy—a deep and abiding than its constitutionally mandated a professor at the University of Chi- respect for the rule of law and our Na- duty to give advice and consent on the cago Law School, and as an Associate tion’s cherished principle of equality President’s judicial nominations. The Counsel in the White House under the under the law. very essence of our Nation’s govern- administration of President Clinton, As I said previously, Supreme Court ment rests on the supremacy of the Ms. Kagan returned to her prestigious Justices are not just judges, they are rule of law, and the Constitution is the alma mater, serving first as a professor stalwarts of our Nation’s democratic highest embodiment of that principle. of law and then as dean of the Harvard values, guardians of the idea that the The men and women whom we confirm Law School. rule of law should always transcend the to this Court are more than just In an auspicious return to public rule of men. Each of the Federal judi- judges. As the chief interpreters of that service, Elena Kagan became the Fed- cial nominees confirmed in this body seminal document, the Constitution, eral Government’s chief lawyer before has the ability to shape every facet of they are guardians of the supremacy of the Supreme Court last year when she the law and, in a larger sense, Amer- the rule of law, upon which the integ- was confirmed by this body as our Na- ican society in general. As a result, it rity of our entire system of justice has tion’s 45th Solicitor General—a posi- is absolutely critical, in my view, that been built. tion often referred to, I might add, as we have members of the Supreme Court It is, therefore, no surprise that the Court’s ‘‘10th Justice’’ because of whose first obligation, above all else, is nominees to our Nation’s highest Court the extensive legal knowledge and to safeguard those guiding constitu- are subjected to such an intense level close working relationship with the tional principles that form the founda- of scrutiny during the Senate’s con- Federal bench it requires. tion of our democratic system of gov- firmation process. Nevertheless, the I realize some of my colleagues have ernment and to fight for the principle Constitution does not lay out a precise questioned Solicitor General Kagan’s of equal justice under law. roadmap for how to do this. Therefore, nomination because of her lack of judi- I firmly believe that, when con- each Senator must decide for him or cial experience—that because Solicitor firmed, Solicitor General Kagan will herself what criteria to use when eval- General Kagan has never been a judge hew closely to those critically impor- uating the merits of an individual Su- in either a State or Federal court she tant values and work to ensure they preme Court nominee. cannot be an effective Supreme Court are protected. For my part, I have used the same, Justice. Once again, I wish to thank Chair- simple three-part test for Supreme I would, however, gently remind my man LEAHY, our colleague Senator SES- Court nominees since 1981, when I colleagues that there is absolutely no SIONS, the ranking minority member, voted to confirm Sandra Day O’Connor constitutional requirement that a Su- and the members of the Judiciary Com- as the Court’s first female Justice. In- preme Court nominee have served pre- mittee, who I think gave her a very deed, this is the 13th Supreme Court viously as a judge. In fact, there is no fair, competent, and thorough hearing nomination I have considered during requirement to be a lawyer to serve on during the nomination process. I also my 30-year tenure in the Senate—from the Supreme Court of the United wish to commend Majority Leader Justice O’Connor to Elena Kagan States. Since our country’s founding, REID for his hard work during this today. well over one-third of the 111 individ- process. I urge my colleagues to join First, does the nominee have the uals who have served on our Nation’s those of us who believe this is a quality technical competence and legal experi- highest Court never put on a judge’s nominee who will serve our country ence to do the job of a Justice on the robe before their confirmation. well as an Associate Justice of the U.S. Supreme Court? Indeed, William Rehnquist, who United States Supreme Court. Second, does the nominee have the served as Chief Justice from 1986 until Mr. President, I thank my colleagues proper character and temperament to his death in 2005, had no prior work ex- on the other side for giving me a few serve on the High Court? perience as a judge when he was first minutes to express my views on this Third, does the nominee’s record appointed to the Court by President issue. demonstrate respect for and adherence Nixon in 1971. I yield the floor. to the principles underlying our legal Nor did Justice Robert Jackson, a The PRESIDING OFFICER. The Sen- system—that of equal justice under the very close and dear personal friend of ator from Alabama is recognized. law? my father who served with him at the Mr. SESSIONS. Mr. President, I ask For anyone who has read about her Nuremberg Trials in 1945 and 1946. Rob- unanimous consent to participate in a life or watched her performance during ert Jackson served as U.S. Attorney colloquy with a number of my Senate the confirmation hearings held by the General under Franklin Roosevelt be- colleagues. Judiciary Committee earlier this sum- fore being appointed to the Supreme The PRESIDING OFFICER. Without mer, I believe it is abundantly clear Court in 1941. objection, it is so ordered. that Elena Kagan passes all three of I would, therefore, submit to my col- Mr. SESSIONS. Mr. President, we these tests with flying colors. leagues that there are other important wish to enter into a discussion this

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This was the office our nominee ran our Constitution; the threat that now Ms. Kagan began her law career during that administration. exists to that right that is plainly stat- clerking for a very antigun judge, In addition, Ms. Kagan appears to ed in the Constitution, and why we Abner Mikva, who later brought Ms. have been in charge of the Domestic think it is worthy of serious consider- Kagan to the White House to serve as Policy Council’s effort to respond to ation. his deputy. Judge Mikva once likened the Supreme Court’s 1997 ruling in I will say that most Americans are the National Rifle Association to ‘‘a Printz v. the United States. The Printz totally unaware, perhaps, that the sec- street crime lobby.’’ case struck down parts of the 1994 ond amendment and the power of the Next, Ms. Kagan’s own hostility to Brady handgun law on tenth amend- second amendment hangs by a mere the second amendment rights became ment grounds. According to the Clin- thread. Two five-to-four decisions re- evident during her time as a law clerk ton Library, even after the Supreme cently have affirmed the second for Justice Thurgood Marshall where Court had ruled, the Clinton adminis- amendment, but had that vote been dif- as a clerk she wrote that she was ‘‘not tration, with Ms. Kagan involved, ferent—one Justice voting a different sympathetic’’ to the argument that the worked to preserve unconstitutional way—the second amendment would not DC handgun ban violated an individ- provisions considered in many legisla- apply to the District of Columbia. It ual’s second amendment rights. This is tive and executive branch responses to would not be considered a right that disappointing and troubling. In this the Court’s decision. would apply even to a Federal Govern- memo she didn’t cite text, precedent, I would reiterate what my friend ment entity such as the District of Co- or analyze the law or look to the Con- from Alabama has said. The right of lumbia as a result of the Heller case. stitution. Ms. Kagan inserted her per- every American—the individual right A more recent case in Chicago, sonal beliefs and said: I am not sympa- we have to keep and bear arms under McDonald v. the City of Chicago, dealt thetic to this individual right argu- the second amendment to the Constitu- with whether the second amendment ment. tion—hangs by a single vote, and I am actually applies to the States and does The case that comment involved was concerned that personal sympathies it only apply to the Federal Govern- Lee Sandidge. A business owner was ar- and a strong record of opposition to the ment. That was a big deal. If it does rested and convicted in the District of second amendment would influence the not apply to the States, then any State Columbia for possessing ammunition way this person would act as a judge. in any city—and many cities are per- and an unregistered pistol without a li- But there is one other thing, and I fectly willing to do this—would have cense. The law provided up to 10 years wish to ask my friend from Nevada the power to ban firearms entirely, in jail for this offense. Mr. Sandidge’s about this. During her testimony be- even though the Constitution plainly second amendment claim—the one that fore the Judiciary Committee, Ms. says you have the right to keep and Ms. Kagan was not sympathetic to- Kagan stated she had never had an oc- bear arms. This was the effect of that ward—challenged the very same DC casion to look at the history on which decision. total gun ban that was struck down Heller is based, and, therefore, she I see my colleague Senator WICKER later by the Supreme Court in the Hell- could not say whether she believed from Mississippi here. I wish to ask er decision. Ms. Kagan’s lack of sym- there is a preexisting individual, funda- him if he would share with us: Does he pathy for Sandidge’s claim dem- mental right to keep and bear arms. believe Ms. Kagan’s record would pro- onstrates she failed to recognize that Here is a talented and intelligent and vide us any insight into her views on we have an individual right as citizens articulate and brilliant law student the second amendment? Because she to bear arms. I am very pleased that and law professor and staffer who would be one of the votes that would be the Supreme Court has now recognized worked extensively on the issue of sec- critical as we go forward in the future this on two occasions, in Heller as well ond amendment rights for years, and as to whether that amendment still has as this year, in 2010, in McDonald. she taught constitutional law at one of power and force. Then Ms. Kagan embarked on what the most prestigious institutions in Mr. WICKER. I thank the ranking can only be described as a quest this country, yet she stated in her tes- member for that question. I would an- against gun ownership and second timony that she had never had occa- swer: Yes, indeed, her record, taken to- amendment rights during her years in sion to look at the history on which gether with her committee testimony, the Clinton White House. She worked this was based and, therefore, she could tells us a lot about Ms. Kagan’s insight extensively on gun issues during Presi- not say whether there was a funda- and feelings about the second amend- dent Clinton’s administration which mental right to keep and bear arms. I ment. was well known for such gun control think her credibility was quite dam- Let me agree with my colleague from efforts. The record leaves no doubt that aged by that statement. Connecticut, however, and say I don’t Ms. Kagan was a key player in shaping I ask my friend Senator ENSIGN believe it is necessary for someone to Clinton White House restrictive gun whether he was surprised when Ms. have judicial experience to be an effec- policies. During those years, she coau- Kagan made that statement based on tive member of the Supreme Court. thored policy memos that advocated her extensive experience and inter- Clearly that is not called for in the increased restrictions on lawful gun action involving this issue? Constitution. However, in a situation owners, including legislation requiring Mr. ENSIGN. As a matter of fact, I such as this, where the nominee has background checks for all secondary was surprised. I think she did a real never written a judicial opinion of her market gun purchases, a gun tracing disservice to her prior employers, Jus- own, where she has hardly any experi- initiative, and a call for a new gun de- tice Marshall, President Clinton, by ence at all in the courtroom, I do think sign ‘‘that can be shot only by author- not studying the history of the second it is appropriate—and actually nec- ized adults.’’ According to the records amendment before she provided them essary—for us to examine her life expe- of the Clinton Presidential Library, with legal advice. I also think she did rience and see what insights we can Ms. Kagan also drafted an Executive a disservice to her students, one that a gain on her views on the second amend- Order restricting the importation of professor of constitutional law should ment. certain semiautomatic rifles that were understand. I would also say this: The debate is not covered by statute. In other words, Ms. Kagan confirmed the importance drawing to a close. The issue is prob- she authored an Executive Order that of studying founding documents when ably not in doubt, but I think we owe went beyond the statute in her quest interpreting second amendment rights it to the RECORD, we owe it to our con- against gun ownership. when she said during her Solicitor Gen- stituents, we owe it to the American At the time of the import ban, a sen- eral hearing: people to outline our concerns with re- ior staffer who worked in the Clinton The individual rights view and the collec- gard to the second amendment to the domestic policy shop that was run by tive rights view present cogent and some- Constitution, to the second article in Ms. Kagan, described the administra- times powerful arguments. And I have come

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Yet involves a local contract dispute, or an inter- government that has perpetrated geno- the choice between the individual and national treaty. cide has first disarmed its citizens. It is collective rights view was crucial to Thanks to Dean Kagan, international my understanding that every known her work for Justice Marshall in the law is a required course at Harvard dictator who has come to power has Sandidge case and was certainly impor- Law School for first-year law students. followed this course. tant to her work during the Clinton ad- However, constitutional law—U.S. con- Mr. SESSIONS. Well, did our Found- ministration. stitutional law—is not only not a first- ing Fathers actually know this? What Mr. THUNE. Would the Senator from year requirement—in fact, somebody was their intent with regard to pre- Nevada yield for a question on that? graduating from Harvard Law School serving the right to keep and bear arms Mr. ENSIGN. Yes. can graduate without ever taking U.S. when this language went into the Con- Mr. THUNE. I heard my colleague constitutional law. stitution? say—and I would be interested in hav- Mr. SESSIONS. If the Senator will Mr. ENSIGN. I know that our Found- ing him confirm—didn’t Ms. Kagan yield, this is a troubling thing. Justice ers certainly looked at writings of teach constitutional law and would it Scalia has been a fierce critic of this, prominent philosophers when debating not have been appropriate at that time pointing out: What country do you the importance of the right to keep and for her to have looked at the Founding pick? Do judges get to pick their own? bear arms. Fathers’ intent on the second amend- It seems to me, from what the Sen- William Blackstone, whom the Su- ment? ator said, it is clear that the Presi- Mr. ENSIGN. As a matter of fact, she preme Court has called the ‘‘pre- dent’s nominee to our highest Court in did teach constitutional law. I suspect eminent authority on English law for the United States has felt that the that in the course of her career, she the founding generation,’’ cited the world of international law is more im- came to understand where the Found- right to keep and bear arms as ‘‘one of portant than studying our own Con- ers included these words in the second the fundamental rights of English- amendment in the Bill of Rights: stitution. men,’’ calling it ‘‘the natural right of Mr. ENSIGN. That is the way it ap- resistance and self-preservation—the A well regulated Militia, being necessary to the security of a free State, the right of pears to me. This is another example of right of having and using arms for self- the people to keep and bear Arms, shall not where her personal beliefs come in to preservation and defense.’’ be infringed. affect the way she is going to be as a Judge St. George Tucker, who wrote I don’t think there was a lack of time judicial activist. the first commentary on the Constitu- or certainly a lack of ability to find Mr. SESSIONS. I agree. I think we tion in 1803, describes the second this source material, but I suspect it must study what our Constitution amendment as ‘‘the true palladium of may be more of her unwillingness to says, what the people who wrote it liberty.’’ accept and ultimately admit that the meant, and what rights the people re- He continued: Constitution and the second amend- tained for themselves when they cre- The right to self-defence is the first law of ment run contrary to her political be- ated it and gave certain limited rights nature: in most governments it has been the liefs. I find this extremely troubling. to the Federal Government. I do be- study of rulers to confine the right within I also think it shows this nominee’s lieve the history of the second amend- the narrowest limits possible. Wherever tendency to rely on her own personal ment is important. What is the history standing armies are kept up, and the right of surrounding the founding of our coun- the people to keep and bear arms is, under beliefs and to read these into her deci- any colour or pretext whatsoever, prohib- sions instead of the intent of the Fram- try and the drafting of the second ited, liberty, if not already annihilated, is on ers of the Constitution. amendment? the brink of destruction. Mr. THUNE. Mr. President, I say to Mr. ENSIGN. I am glad the Senator Judge Tucker also said: my friend from Nevada, it is trou- from Alabama asked that critical ques- If, for example, a law passed by congress, bling—very troubling, and maybe even tion. I think it is so important for prohibiting the free exercise of religion . . . telling—that the President would ask Americans, people in this body, but es- or abridging the freedom of speech, or of the us to confirm an individual who admit- pecially our Supreme Court Justices, press; or the right of the people to assemble tedly has not reviewed the justification to understand. peaceably, or to keep and bear arms; it for the second amendment in the Bill We have to remember that the found- would, in any of these cases be the province of Rights. ing generation had just finished fight- of the judiciary to pronounce whether any Mr. ENSIGN. I think my friend from ing the Revolution against a tyran- such act were constitutional. . . . The judici- South Dakota makes an excellent ob- nical government. They knew the true ary, therefore, is the department of the gov- servation. This admission of her failure ernment to whom the protection of the value of having an armed citizen popu- rights of the individual is by the constitu- to study the history surrounding the lation. tion especially, confided, interposing its second amendment is also in stark con- Thomas Paine wrote in ‘‘Thoughts on shield between him and the sword of usurped trast to her emphasis on the impor- Defensive War’’ in 1775: authority, the darts of oppression, and the tance of students studying inter- Arms discourage and keep the invader and safety of faction and violence. national law at Harvard Law School. plunderer in awe, and preserve order in the I would like to ask my colleague When Solicitor General Kagan be- world, as well as property. . . . Horrid mis- from Mississippi, what did Ms. Kagan came dean of the Harvard Law School, chief would ensue were the law-abiding de- say about this natural right of self-de- prived of the use of them. she spearheaded a sweeping overhaul of fense? the academic curriculum to require Thomas Jefferson once said in a 1787 Mr. WICKER. I simply look to her law students to take an international letter to William Smith: own testimony. I think it is trou- and comparative law course during And what country can preserve its lib- bling—particularly for a law professor their first year. erties, if its rulers are not warned from time and somebody who dealt with the issue When asked, ‘‘What specific subjects to time that this people preserve the spirit of for decades—when asked at her hearing resistance? Let them take arms. . . . or legal trends would you like [Har- whether she personally believes there vard] to reflect?’’ she responded: Patrick Henry said: was a right to self-defense that existed First and foremost, international law. . . . Are we at last brought to such an before the Constitution, she said she we should be making clear to our students humiliating and debasing degradation that ‘‘didn’t have a view of what are natural the great importance of knowledge about we cannot be trusted with arms for our own other legal systems throughout the world. defense? Where is the difference between independent of the Constitution.’’ For 21st century law schools, the future lies having our arms under our own possession Maybe Solicitor General Kagan was in international and comparative law, and and under our own direction, and having tired by that time. Maybe she had been this is what law schools today ought to be fo- them under the management of Congress? If told by her handlers—the people at the cusing on. our defense be the real object of having those Department of Justice—that it is best

VerDate Mar 15 2010 05:41 Dec 01, 2010 Jkt 079060 PO 00000 Frm 00052 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\AUGUST\S05AU0.REC S05AU0 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE August 5, 2010 CONGRESSIONAL RECORD — SENATE S6807 to simply not answer that. But I say to Mr. SESSIONS. It is a troubling I ask Senator THUNE, have any of the my colleagues, we are endowed by our statement. I think, clearly, it allows outside groups that are concerned Creator with certain inalienable rights. her to justify voting—if confirmed to about these issues spoken out about We don’t get them from the Constitu- the Supreme Court—to eviscerate the this nomination? tion. Those rights are there. Certain second amendment. There are some Mr. THUNE. They have. I simply say rights are enumerated, including the earlier cases before the 14th amend- to my colleague from Alabama, in his second amendment rights, in the Con- ment was even passed, or before the stitution. For a Justice of the Supreme first 10 amendments, the Bill of Rights, remarks he noted the pattern we are Court not to understand that causes were applied to the States in any sys- starting to see that exists with regard me problems, and it causes me to think tematic way that you could rely on as to—the Senator from Alabama men- that she just doesn’t have a very well- precedent, which could indeed trump, tioned the Attorney General of this ad- founded view of the second amendment. in her words, the original intent of the ministration and their nominees to the Mr. ENSIGN. Well, I think her state- Constitution. Supreme Court. What that has done is ment was shocking. It also proves she What did the people ratify? They galvanized those at the grassroots level doesn’t believe the second amendment ratified the Constitution that, in fact, who are very concerned about what codifies the preexisting natural right just before the Founders signed it, they they see happening and how it might to self-defense. said ‘‘we do ordain and establish this threaten and put in danger the second Her statement is in stark contrast Constitution for the United States’’— amendment right that many of them with the belief of our Founders, who not some other judicial opinion 100 have enjoyed and believe is something fervently believed that the right to years later. that ought to be protected in the fu- keep and bear arms was a natural I think it raises troubling questions ture—it ought to be protected by the right. Our Founders discussed natural about where she stands on that. In the Supreme Court, it ought to be pro- rights in one of the founding docu- light of Heller and McDonald, which tected by the Congress, it ought to be were razor-thin 5-to-4 decisions, made ments, the Declaration of Independ- protected by the President of the within the last 21⁄2 years, we have to ence: United States. We hold these truths to be self-evident, acknowledge that the Supreme Court is that all men are created equal, that they are not, with clarity, committed to the We see some of these grassroots peo- endowed by their Creator with certain plain application of the second amend- ple who are concerned about this issue unalienable rights, that among these are life, ment. give voice to their concerns through liberty, and the pursuit of happiness. Mr. THUNE. If I might ask the Sen- organizations such as the NRA, for ex- Yet Ms. Kagan doesn’t ‘‘have a view ator from Alabama this—because he is ample, and Gun Owners of America. I of what are natural rights independent the ranking member on the Judiciary wish to point out, if I may, that both of of the Constitution.’’ The failure to Committee. I know he has dealt with these organizations have written let- recognize the natural right to self-de- numerous nominees to the Supreme ters in opposition to Ms. Kagan’s nomi- fense as articulated by our Founders Court in the past, as well as probably nation. and expressed in the Bill of Rights, I hundreds of other judicial nominees. believe, is deeply disturbing. Does the Senator recall how often I ask unanimous consent to have The Constitution doesn’t create these those nominees had a record on second printed in the RECORD these letters. inalienable rights, as the Senator from amendment rights? There being no objection, the mate- Mississippi said. It recognizes and pro- Mr. SESSIONS. Well, most nominees rial was ordered to be printed in the tects these rights that are considered have not had a record on it, but it is in- RECORD, as follows: bestowed upon us by our Creator. teresting, and perhaps noteworthy, NATIONAL RIFLE ASSOCIATION Mr. WICKER. The Senator is correct. that President Obama, who himself has OF AMERICA, The phrase ‘‘a right of the people’’ is not been a strong supporter of the sec- Fairfax, VA, July 1, 2010. used two other times in the Constitu- ond amendment rights, and many of Hon. PATRICK LEAHY, tion and the Bill of Rights—in the first his supporters and Cabinet members Chairman, Senate Committee on the Judiciary, amendment’s assembly and petition are openly hostile to it, the two nomi- Dirksen Senate Office Building, Wash- clause, the fourth amendment’s search nees for the Supreme Court he has sub- ington, DC. Hon. JEFF SESSIONS, and seizure clause, and a very similar mitted, Justice Sotomayor and Kagan, Ranking Member, Senate Committee on the Ju- phrase is used in the ninth amendment, have had records that indicate a hos- diciary, Dirksen Senate Office Building, where the Founders stated that ‘‘the tility to it. Even though Judge Washington, DC. enumeration in the Constitution, of Sotomayor, in her testimony, indicated DEAR CHAIRMAN LEAHY AND RANKING MEM- certain rights, shall not be construed she considered this settled law—the BER SESSIONS: We are writing to announce to deny or disparage others retained by Heller decision—her decision less than the National Rifle Association’s position on the people.’’ a year later in the Chicago McDonald the confirmation of Solicitor General Elena In all three instances, the Framers case, on a similar but somewhat dif- Kagan as Associate Justice of the United were referring to individual rights and ferent issue, was not consistent with States Supreme Court. not to collective rights. Nowhere in the the belief that the Supreme Court had Other than declaring war, neither house of Constitution does a ‘‘right’’ attributed settled the question in Heller. So this Congress has a more solemn responsibility to ‘‘the people’’ refer to anything but was a troubling thing. I think the At- than the Senate’s role in confirming justices an individual right. It is the same with torney General of the United States, to the U.S. Supreme Court. As the Senate the second amendment. Eric Holder, has argued very vocifer- considers the nomination of Solicitor Gen- This has been affirmed in the Heller ously to restrict gun rights. eral Kagan, Americans have been watching case. Judge Sotomayor, when testi- This is the top law enforcement offi- to see whether this nominee—if confirmed— fying before us, said she thought that cer in the country. I do believe this is would respect the Second Amendment or side was settled law. The decision this year, a matter of some concern, in fact, that with those who have declared war on the in which she dissented, makes me won- we may be moving into a period in rights of America’s 80 million gun owners. der about that, and it gives me grave which the government, the big city in During confirmation hearings, judicial concern, with a 5-to-4 Court, about Washington, the elites who control nominees make carefully crafted statements what might happen to precedent and this, who come out of an environment regarding issues with which they do not per- what I believe now is settled law. where they are not comfortable with sonally agree. They often speak in terms of Let me ask the ranking member, dur- guns, are oblivious and insensitive to ‘‘settled law’’ or ‘‘I understand the right’’. When those statements are contradicted by ing Ms. Kagan’s hearing, she was ques- the right that I believe was critical to an entire body of work over a nominee’s ca- tioned about her statement that she our Founders in ratifying the Constitu- reer, however, it would be foolhardy to sim- believes precedent trumps original in- tion. They wanted to know that they ply take them at face value. In Ms. Kagan’s tent. What does this mean with regard had a right to keep and bear arms, and own words, ‘‘you can look to my whole life as to the second amendment rights, based it was important to them that the to what kind of justice I would be.’’ We on the pre-Heller precedent? right was in the Constitution. agree.

VerDate Mar 15 2010 05:41 Dec 01, 2010 Jkt 079060 PO 00000 Frm 00053 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\AUGUST\S05AU0.REC S05AU0 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S6808 CONGRESSIONAL RECORD — SENATE August 5, 2010 As she has no judicial record on which we wish to discuss further, please do not hesi- . . . the available evidence portrays her as can rely, we have only her political record to tate to call on us personally. a forceful advocate of restrictive gun laws review. And throughout her political career, Sincerely, and as a person driven by political consider- she has repeatedly demonstrated a clear hos- WAYNE LAPIERRE, ations rather than the rule of law. tility to the fundamental, individual right to Executive Vice Presi- The NRA went on to write: keep and bear arms guaranteed under the dent, NRA. . . . Ms. Kagan’s record on the Second U.S. Constitution. CHRIS COX, Amendment gives us no confidence that if As a clerk for Justice Thurgood Marshall, Executive Director, confirmed to the Court, she will faithfully Ms. Kagan said she was ‘‘not sympathetic’’ NRA–ILA. defend the fundamental, individual right to to a challenge to Washington, D.C.’s ban on keep and bear arms of law-abiding Ameri- handguns and draconian registration re- GUN OWNERS OF AMERICA, cans. quirements. As domestic policy advisor in Springfield, VA, August 5, 2010. For these reasons, the National Rifle Asso- the Clinton White House, a colleague de- DEAR SENATOR: You will soon vote on the ciation has no choice but to oppose the con- scribed her as ‘‘immersed’’ in President Clin- confirmation of Elena Kagan to the U.S. Su- firmation of Solicitor General Elena Kagan ton’s gun control policy efforts. For exam- preme Court. to the U.S. Supreme Court. Given the impor- During her confirmation hearings, Kagan ple, she was involved in an effort to ban tance of this issue, this vote will be consid- ducked and dodged questions about the Sec- more than 50 types of commonly-owned ered in the NRA’s future candidate evalua- ond Amendment and refused to declare semi-automatic firearms—an effort that was tions. described as: ‘‘taking the law and bending it whether she believes the Second Amendment as far as we can to capture a whole new class protects an individual right. Yes, the answer to the question of of guns.’’ And as U.S. Solicitor General, she Kagan insisted that the Supreme Court de- the Senator from Alabama is both the chose not to file a brief last year in the land- cisions in Heller and McDonald should be NRA and Gun Owners of America have mark case McDonald v. Chicago, thus taking treated as precedent and ‘‘settled law,’’ but opposed not only this nomination but the position that incorporating the Second this in no way precludes her from ruling that also Justice Sotomayor’s nomination. Amendment and applying it to the States almost any gun law—including gun owner Mr. President, I ask unanimous con- was of no interest to the Obama Administra- registration, purchasing limits, waiting peri- ods, private sale background checks, and sent to have printed in the RECORD the tion or the federal government. These are NRA’s letter in opposition to the not the positions of a person who supports more—is consistent with the Constitution. Recall the confirmation hearings of Sonia Sotomayor nomination. the Second Amendment. During her confirmation hearings last Sotomayor, the newest Supreme Court Jus- There being no objection, the mate- year, Justice Sonia Sotomayor repeatedly tice. Sotomayor assured the Senate, and the rial was ordered to be printed in the stated that the Supreme Court’s historic American people, that she accepted the RECORD, as follows: Court’s ruling in Heller that the Second Heller decision was ‘‘settled law’’. Even fur- NATIONAL RIFLE ASSOCIATION ther, in response to a question from Chair- Amendment protects an individual right. Yet, in the McDonald case, Sotomayor OF AMERICA, man Leahy, she said ‘‘I understand the indi- joined the dissent in writing that ‘‘I can find Fairfax, VA, July 23, 2009. vidual right fully that the Supreme Court nothing in the Second Amendment’s text, Hon. HARRY REID, recognized in Heller.’’ Yet last Monday in history, or underlying rationale that could Majority Leader, U.S. Senate, The Capitol, McDonald, she joined a dissenting opinion warrant characterizing it as ‘fundamental’ Washington, DC. which stated: ‘‘I can find nothing in the Sec- insofar as it seeks to protect the keeping and Hon. MITCH MCCONNELL, ond Amendment’s text, history, or under- bearing of arms for private self-defense pur- Republican Leader, U.S. Senate The Capitol, lying rationale that could warrant charac- poses.’’ Washington, DC. terizing it as ‘fundamental’ insofar as it Ms. Kagan has made the same promises to DEAR LEADER REID AND LEADER MCCON- seeks to protect the keeping and bearing of the Senate, but the available evidence por- NELL: We are writing to express the National arms for private self-defense purposes’’. trays her as a forceful advocate of restrictive Rifle Association’s opposition to the con- We would also note that both Heller and gun laws and as a person driven by political firmation of Judge Sonia Sotomayor as As- McDonald were 5–4 decisions. The fact that considerations rather than the rule of law. sociate Justice of the United States Supreme four justices would effectively write the Sec- While Ms. Kagan does not have a record of Court. ond Amendment out of the Constitution is judicial opinions, her views on the Second From the outset, the National Rifle Asso- completely unacceptable. Ms. Kagan has re- Amendment are no mystery. Some consider- ciation respected the confirmation process peatedly declined to say whether she agrees ations that have come to light since her and hoped for mainstream answers to bed- with the dissenting views of justices Stevens, nomination include: rock questions. Unfortunately, Judge Breyer, Ginsburg and Sotomayor, which While serving in the Clinton administra- Sotomayor’s judicial record and testimony leaves unanswered the very serious questions tion, Ms. Kagan drafted an executive order during the Senate Judiciary Committee of whether she would vote to overturn Heller to ban certain semi-automatic firearms; hearings clearly demonstrate a hostile view and McDonald or narrow their holdings to a Ms. Kagan suggested that the President of the Second Amendment and the funda- practical nullity. could issue another executive order—bypass- mental right of self-defense guaranteed This nation was founded on a set of funda- ing Congress—to ban gun purchases without under the U.S. Constitution. mental freedoms. Our Constitution does not prior approval from the federal government; We are particularly dismayed about the give us those freedoms—it guarantees and As a law clerk, Elena Kagan advised U.S. Court of Appeals for the Second Cir- protects them. The right to defend ourselves against the Supreme Court considering cuit’s recent decision in the case of Maloney and our loved ones is one of those. The fun- Sandidge v. United States in a case that v. Cuomo, in which Judge Sotomayor refused damental, individual right to keep and bear questioned the constitutionality of the D.C. to follow Supreme Court precedent by con- arms is another. These truths are what de- gun ban, writing that she was ‘‘not sympa- ducting a proper incorporation analysis of fine us as Americans. thetic’’ to the gun owner’s Second Amend- the Second Amendment, concluding instead Any individual who does not believe that ment claims; and, that the right to keep and bear arms does the Second Amendment guarantees a funda- Kagan was part of the Clinton team that not protect all law-abiding Americans living mental right and who does not respect our pushed the firearms industry to include gun in every corner of this nation. God-given right of self-defense should not locks with all gun purchases and was in the In addition, Judge Sotomayor was a mem- serve on any court, much less receive a life- Clinton administration when the President ber of the panel in the case of United States time appointment to the highest court in the pushed legislation that would close down gun v. Sanchez-Villar, where (in a summary opin- land. Justice Sotomayor’s blatant reversal shows. ion) the Second Circuit dismissed a Second on this critical issue requires that we look Elena Kagan poses such a threat to the Amendment challenge to New York State’s beyond statements made during confirma- Second Amendment that it would be better pistol licensing law. That panel, in a terse tion hearings and examine a nominee’s en- for the Supreme Court to begin its 2010–2011 footnote, cited a previous Second Circuit tire body of work. Unfortunately, Ms. session with only eight Justices, than for case to claim, ‘‘the right to possess a gun is Kagan’s record on the Second Amendment this radical nominee to be confirmed. clearly not a fundamental right.’’ gives us no confidence that if confirmed to On behalf of over 300,000 members of Gun It is only by ignoring history that any the Court, she will faithfully defend the fun- Owners of America, I urge you to ‘‘NO’’ on judge can say that the Second Amendment is damental, individual right to keep and bear this nominee’s confirmation. not a fundamental right and does not apply arms of law-abiding Americans. Sincerely, to the States. The one part of the Bill of For these reasons, the National Rifle Asso- JOHN VELLECO, Rights that Congress clearly intended to ciation has no choice but to oppose the con- Director of Federal Affairs. apply to all Americans in passing the Four- firmation of Solicitor General Elena Kagan Mr. THUNE. Mr. President, I con- teenth Amendment was the Second Amend- to the U.S. Supreme Court. Given the impor- tinue by saying that after reviewing ment. History and congressional debate are tance of this issue, this vote will be consid- clear on this point. ered in NRA’s future candidate evaluations. Ms. Kagan’s record of testimony at the We believe any individual who does not Thank you for your attention to our con- confirmation hearing, Gun Owners of agree that the Second Amendment guaran- cerns. Should you have any questions or America concluded: tees a fundamental right and who does not

VerDate Mar 15 2010 05:41 Dec 01, 2010 Jkt 079060 PO 00000 Frm 00054 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\AUGUST\S05AU0.REC S05AU0 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE August 5, 2010 CONGRESSIONAL RECORD — SENATE S6809 respect our God-given right of self-defense ings were much more hostile toward those people who care profoundly about should not serve on any court, much less the the second amendment right than what the right to keep and bear arms—ought highest court in the land. Given the impor- she was letting on. to be concerned? For example, what is tance of this issue, the vote on Judge Specifically, I had concerns with two a sensitive place? Who needs to reg- Sotomayor’s confirmation will be considered in NRA’s future candidate evaluations. different cases she decided as a circuit ister? There are going to be registra- Thank you for your attention to our con- court judge, including one after the Su- tion laws that are put in place. How is cerns. Should you have any questions or preme Court already recognized the the issue of microstamping and the wish to discuss further, please do not hesi- second amendment was an individual mandates and requirements that might tate to call on us personally. right, where she held in that case that be associated with that going to im- Sincerely, the second amendment was ‘‘clearly pact this fundamental second amend- WAYNE LAPIERRE, not a fundamental right’’ and did not ment right? Executive Vice Presi- apply to the States. Mr. ENSIGN. Mr. President, I ask the dent, NRA. There were some Senators at the ranking member about the McDonald CHRIS COX, Executive Director, time who were not as concerned by this case, and maybe he can go into some NRA–ILA. record as I was and some of the others details about the McDonald case and Mr. THUNE. Mr. President, the NRA of us in the Chamber were and went so the significance of that when it comes wrote in that case: far as to say—this is a quote from one to future decisions. of our colleagues: Mr. SESSIONS. The McDonald case . . . Judge Sotomayor’s judicial record and was a hugely important case. It dealt testimony during the Senate Judiciary Com- I do not see how any fair observer could re- mittee hearings clearly demonstrate a hos- gard her testimony as hostile to the second for the first time in recent memory tile view of the Second Amendment and the amendment personal right to bear arms, a with the question of whether the sec- fundamental right of self-defense guaranteed right she has embraced and recognized. ond amendment, which had been held under the U.S. Constitution. That is something said by one of our in Heller to apply to the Federal Gov- Mr. ENSIGN. Mr. President, I ask my colleagues in the Senate during the ernment, whether it passed through friend from South Dakota, why is it so Sotomayor confirmation. the 14th amendment to apply to all the significant that both of these groups While what Justice Sotomayor said States—and cities are creatures of have opposed her nomination? during the hearing certainly gave the States, so whether it applied to cities. Mr. THUNE. I say to my colleague impression that she believed in the in- This is a big deal because it is not from Nevada, it comes down to their dividual right to keep and bear arms, generally so much the Federal Govern- horrible record on gun rights. It made her prehearing record demonstrated ment that is willing to deny gun it impossible for these two organiza- her true beliefs. rights, but certain States and certain tions to conclude that they would be I am here today to urge those Mem- cities seem very aggressively willing to impartial constitutional judges on this bers who proclaim to strongly support deny people’s second amendment issue even though they tried to con- the second amendment not to be fooled rights. The question for the Court was: Is it vince Senators otherwise during their a second time. Ms. Kagan was asked a fundamental right in the Bill of confirmation hearings. about the second amendment on a Rights, a stated fundamental right, These groups had their concerns number of occasions at her hearing, and if it is fundamental, it passes about Justice Sotomayor validated on and each time her response was merely through the 14th amendment and all June 30, 2010, when she ruled again that a mimic of Justice Sotomayor’s state- States must comply with it, just as the second amendment is not a funda- ments on the second amendment at her hearing. States must comply with the right to mental right. Justice Sotomayor as- free speech and other rights in the Con- sured Senators during her hearing that Ms. Kagan would go no further than to acknowledge that the important Su- stitution. she believed the second amendment By a razor thin 5-to-4 majority, the preme Court decisions in Heller and guaranteed an individual right to keep Supreme Court in McDonald held that McDonald are ‘‘precedent’’ and ‘‘settled and bear arms. But then in her first it is a fundamental right and does law entitled to all the weight the ruling on the second amendment as a apply to the States, and no State, precedent usually gets.’’ Supreme Court Justice, she joined the therefore, and no city can deny an indi- I believe there is no question that minority opinion in McDonald v. Chi- vidual right of an American citizen to Ms. Kagan will follow in the footsteps cago and failed to protect this indi- keep and bear arms. This is a big, im- of Justice Sotomayor and revert to the vidual right, as confirmed by the ma- portant case. jority of the Court, for citizens living beliefs demonstrated by her anti-sec- Justice Sotomayor—who suggested in the 50 States. ond amendment record rather than her otherwise in her testimony—as Senator Specifically, at Justice Sotomayor’s posturing during her confirmation THUNE said, her record suggested she hearing, she said that she ‘‘understood hearing. would rule that way, rule with the four the individual right fully that the Su- That is the reason the NRA and other that it did not apply to the States. It is preme Court recognized in Heller’’ and groups that treasure the fundamental a big deal. ‘‘knew how important the right to bear right to keep and bear arms, such as Mr. ENSIGN. In the McDonald case, arms is to many Americans,’’ and that Gun Owners of America, oppose her as I understand, there were several re- she did not consider the right nomination, just as they did Justice strictions put on citizens when it came ‘‘unfundamental.’’ Sotomayor’s. to their second amendment right: pay- This is in stark contrast to the opin- The only question that remains for ing a $100 processing fee and a $15 fee ion she signed onto in McDonald that I us in the Senate is whether pro-second for each gun registered; undergo and said—this is a quote from the McDon- amendment Senators who voted for pass a firearms safety test which con- ald opinion: Justice Sotomayor have learned their sists of 4 hours of training and 1 hour I can find nothing in the Second Amend- lesson and will vote against the Kagan target range practice, which, by the ment’s text, history, or underlying rationale nomination. way, costs about $100 for each one of that could warrant characterizing it as fun- I say to my colleagues from Nevada those activities; undergo and pass a vi- damental, insofar as it seeks to protect the and Alabama, as the old saying goes: sion test, if you do not have an Illinois keeping and bearing of arms for private self- Fool me once, shame on you; fool me driver’s license; provide fingerprints; defense purposes. twice, shame on me. For the sake of be at least 21 years of age or 18 years I know that many in this body, espe- gun owners across the country, I hope with parents’ permission; wait 45–120 cially those who supported her con- they will not be fooled again. days for processing; own only one oper- firmation, were surprised by what is I say to my colleagues from Nevada ational firearm; and reregister every 3 seemingly a 180-degree turn. and Alabama, with all the unanswered years. While I had hoped we could trust her questions that remain after the Heller I ask the ranking member, why are word, I was concerned that her record and McDonald cases, are there not lots these restrictions necessary? did not fit her statements at the hear- of reasons why those grassroots people Mr. SESSIONS. The question be- ing. I had concerns that her true feel- across this country—those gun owners, comes: Does it impact a fundamental

VerDate Mar 15 2010 05:41 Dec 01, 2010 Jkt 079060 PO 00000 Frm 00055 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\AUGUST\S05AU0.REC S05AU0 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S6810 CONGRESSIONAL RECORD — SENATE August 5, 2010 right? At some point it does. We de- mean, that is what the first amend- what happened. I believe a due respect cided you cannot put a poll tax on peo- ment was about. It wasn’t about por- for the men and women of our military ple to say you have to pay money for nography or flag burning, for heaven’s and the gravity of this debate demand your right to vote. People do not have sake. It was about political speech, a full review of the facts behind what to pay for the right to speak out about plainly in the Constitution. Yet we had Elena Kagan did as dean of the Harvard advocate beliefs because you have a four members of the Supreme Court—a Law School to exclude and stigmatize right to free speech. vote in an opinion recently—who said the U.S. military. I do think these restrictions, as they the government could ban the pam- Harvard Law School adopted an anti- increase, can reach a point of denial of phlets. Actually, another lawyer for discrimination policy in 1979. This pol- people’s individual right to keep and the government argued you could ban icy states that any employer that bear arms. We want to be sure that a books. wished to use the Office of Career Serv- judge not only recognizes it is a con- The Supreme Court, by a 5-to-4 ma- ices at the law school had to sign a stitutional individual right but that jority did, in fact, say that you could statement affirming that it does not the judge recognizes that some of these take a man’s private drugstore—the discriminate on various bases, includ- restrictions we accept and are legiti- government could—and give it to an- ing sexual orientation. The military— mate go too far. other man who had a competing drug- not just because of its policy but be- Mr. ENSIGN. I will add, concluding store; in other words, taking private cause of the policy of the Congress and my remarks, that this issue is of crit- property for private use. The Constitu- the law that we passed—could not sign ical importance. Without the second tion says you can’t take private prop- this statement because of the don’t amendment, the rest of the Bill of erty except for public use under con- ask, don’t tell policy adopted during Rights can go away. That is what our demnation. A plain violation, 5-to-4 ap- the Clinton administration. In 1993, when a Democratic Congress Founders recognized. Our colleagues, proved. before they vote on Solicitor General By two 5-to-4 decisions—the nar- and the Clinton administration Kagan, need to understand that. That rowest of margins—we had the plain changed the military’s outright ban on is why this colloquy is so important constitutional right that Americans gays in the military to adopt this don’t today. We have brought out some very have to keep and bear arms hang by ask, don’t tell policy, Harvard took the position that the military was still not important points. one vote. We have another example of a in compliance with its antidiscrimina- It was an honor to be with my col- judge in California yesterday declaring tion policy. As a result of Harvard’s leagues to discuss Solicitor General that the Constitution somewhere says policy, from 1979 through 2002, the U.S. Kagan’s views on the second amend- a State must declare that a union be- military was barred from recruiting in- ment and how that potentially could tween same-sex couples has to be de- dividuals at the Harvard Law School’s impact her decisions in the future. fined in the same way and recognized Office of Career Services, where every- Mr. THUNE. Mr. President, I close by in the same way as a marriage, even one else who was recruiting on campus saying as well, I think in all cases, you after California had a referendum in was allowed to conduct interviews and have to judge people not by what they which millions of Californians voted say but by what they do. Clearly, the recruit potential candidates. differently. A single judge, with no While this ban on the services of the record would suggest, as it did with clear constitutional authority at all— Office of Career Services was in effect, Justice Sotomayor, a certain hostility in fact, no real constitutional author- the Harvard Law School Veterans As- toward the second amendment right. ity—declared that invalid and wiped it sociation essentially took the place of Obviously, statements at the Judiciary out. the Office of Career Services and estab- Committee hearings suggesting an So I would suggest that people who lished an off-campus interview forum openness to this or acknowledging set- are using this court to promote their for law students interested in serving tled law or precedents or all those sorts agendas need to be careful. Don’t think their country in the U.S. military. So of things were meaningless in regard to you can play with the first amend- because they were banned from the Of- the Chicago case with regard to Justice ment. Don’t think you can play with fice of Career Services, the military Sotomayor. the second amendment. Don’t think had to look for an alternative venue or If we look at the long history of Ms. you can play with the constitutional forum provided by the Harvard Law Kagan with regard to this issue, I think right to have your property not taken School Veterans Association in order we can conclude where she is going to by the government except for public to conduct those interviews. end up. use. If you can start wiping those But then something very important It is a critical issue because these are rights out, what right next will the happened. In 1995, Congress enacted an- 5-to-4 decisions. These are very narrow Court come and take? What right next other law, popularly known as the Sol- decisions that strike at the very heart will the central government come and omon Amendment. The Solomon of a fundamental constitutional right take from you? Amendment said you cannot receive that people in this country deserve to So if you love this Constitution and Federal funds—if you are an edu- have their leaders, both elected leaders respect it and believe it is a great bul- cational institution—if you, in effect, and people on the Court, protect. I am wark for freedom, prosperity, and lib- prohibit military recruiting on your very concerned about where that is erty, I suggest there is only one way to campus. In other words, they could headed with this nominee. handle it, Mr. President: enforce it as have continued their policy of dis- I yield to the Senator from Alabama. written whether you like it or not. crimination against the military, but Mr. SESSIONS. I thank my col- I thank the Chair, and I yield the they would have been denied Federal leagues for this nice and valuable dis- floor. funds under the plain wording of the cussion. I will say that one of the un- The PRESIDING OFFICER. The Sen- Solomon Amendment passed in 1995. justifiable actions of the judicial activ- ator from Texas. The Secretary of Defense, under the ist philosophy that is too much afoot Mr. CORNYN. Mr. President, I want Solomon Amendment, has to make a in America today is their willingness to address the nomination of Solicitor finding that the school is not offering to completely be oblivious to plain General Kagan to serve on the U.S. Su- access to military recruiters that is constitutional rights, things that are preme Court. Earlier this week, I dis- ‘‘equal in quality and scope to the ac- flatly stated, and then to create rights cussed my opposition to the nomina- cess that the school provides other em- that do not exist. tion, but at that time I didn’t go into ployers.’’ That was the 1995 law. In For example, the Constitution gives any depth about my concerns with re- 2002, the Secretary of Defense of the the right to free press, but we had So- gard to her participation in the mili- United States found that Harvard’s ex- licitor General Kagan arguing before tary recruiting policy that banned the clusion of military recruiters from the the Supreme Court in defense of this U.S. military from the Office of Career Office of Career Services was not campaign finance bill that a corpora- Services at Harvard Law School. ‘‘equal access.’’ tion could be prohibited from pro- While this incident has been dis- In response to this Federal law and ducing a pamphlet before an election cussed a lot, I think it is very impor- the finding by the Secretary of De- that might be critical of a politician. I tant to establish for the record exactly fense, Ms. Kagan’s predecessor, Robert

VerDate Mar 15 2010 05:41 Dec 01, 2010 Jkt 079060 PO 00000 Frm 00056 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\AUGUST\S05AU0.REC S05AU0 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE August 5, 2010 CONGRESSIONAL RECORD — SENATE S6811 Clark, essentially capitulated and gave forcement pending a decision by the a split panel of the Third Circuit held the military access to the Office of Ca- U.S. Supreme Court. After this, of that the Solomon Amendment was un- reer Services in 2002. So Dean Robert course, the Third Circuit ruling did not enforceable, and for all but 2 months of Clark, Dean Kagan’s predecessor, rath- even have any effect even in the Third that time, the Third Circuit’s order er than be denied Federal funds to Har- Circuit, much less in the jurisdiction in was stayed. vard by violating the Solomon Amend- the circuit with jurisdiction over Har- Despite all of this, Dean Kagan per- ment and denying access to military vard. But even after the order was sisted in barring military recruiters recruiters to the Office of Career Serv- stayed, Ms. Kagan continued the policy from the Office of Career Services and ices, decided in 2002 to change Har- of barring military recruiters from the insisted that the military could obtain vard’s policy. Thus, when Ms. Kagan Office of Career Services. separate but equal access to Harvard became dean of the law school in the While her policy barring military re- Law School through alternate routes. spring of 2003, the military had full ac- cruiters from the Office of Career Serv- Dean Kagan held that the Supreme cess to the Office of Career Services to ices was in effect, Dean Kagan ap- Court’s position ran afoul of the Sol- recruit interested candidates for mili- proached the Harvard Law School Vet- omon Amendment, the findings of the tary service. erans Association and asked them to Secretary of Defense, and ultimately For a while, Dean Kagan maintained serve as an alternate channel for mili- the legal judgment of the entire Su- the military’s access to the Office of tary recruiting at Harvard Law School. preme Court. I believe these are the un- Career Services in compliance with the In 2005, the law school veterans de- disputed facts of the case. Solomon Amendment. But it is clear clined, writing: So why do Ms. Kagan’s actions mat- that Dean Kagan did not like that be- Given our tiny membership, meager budg- ter? I would argue that they matter for cause she voiced her political opposi- et, and lack of any office space, we possess two reasons. First is the message her tion to the don’t ask, don’t tell pol- neither the time nor the resources to rou- actions sent about her lack of respect icy—in other words, the law enacted by tinely schedule campus rooms or advertise for the U.S. military at Harvard Law Congress and to which the Department extensively for outside organizations, as is School during her deanship. Ms. Kagan of Defense was accountable for enforc- the norm for most recruiting events. claims she holds the military in the ing—in an e-mail she sent to all of Har- In short, the law school veterans told highest respect, but I have to ask you, vard’s law students saying that she Dean Kagan that the separate access this notion that you are going to pro- ‘‘abhorred’’ the ‘‘don’t ask, don’t tell she wanted them to offer the military vide separate but equal access to inter- policy’’ and she considered it ‘‘a moral would not be equal because they didn’t viewing services is not one that shows injustice of the first order.’’ have the ability to match the resources respect. It is one that provides an un- In January 2004, Dean Kagan joined of the Office of Career Services. necessary and really reprehensible stig- 53 other members of the Harvard law In May 2005, the Supreme Court of ma on the U.S. military, which had no faculty in filing a friend of the court the United States then said they were control over a policy passed by Con- brief supporting a challenge to the Sol- going to hear an appeal of the Third gress under the Solomon Amendment. omon Amendment in the Third Circuit Circuit’s decision, and they granted the Of course, she did this at a time when Court of Appeals. So even though she writ of certiorari to the Defense De- hundreds of thousands of young men maintained access for a while, inher- partment’s appeal of that case to re- and women deployed to Iraq and Af- ited that policy under her predecessor, view their finding on the Solomon ghanistan were wearing the uniform of in 2004, when a lawsuit was filed to Amendment. Over the summer of 2005, their country to protect their fellow challenge the Solomon Amendment, the Defense Department notified Dean citizens and the rule of law. Dean Dean Kagan and other Harvard Law Kagan that it would rescind Harvard’s Kagan’s actions in taking every step School faculty joined in a friend of the funding—in other words, it would deny legally possible to relegate the mili- court brief to try to strike down the Federal funding to Harvard pursuant to tary to what she herself believed was Solomon Amendment. the Solomon Amendment—if she con- separate but equal status placed an un- In November of 2004, a split panel on tinued to deny the military access to mistakable stigma on the military dur- the Third Circuit Court of Appeals ac- the Office of Career Services. ing a time of war. tually held that the Solomon Amend- Faced with this ultimatum, on Sep- I believe her decision to stigmatize ment was reasonably likely to be un- tember 20, 2005, Dean Kagan finally the military is reason enough to oppose constitutional and sent the case back ended her 10-month unlawful denial of her nomination to a lifetime seat on to the district court with instructions access and announced that pending the the U.S. Supreme Court, but her ac- to issue an injunction halting the Sol- Supreme Court’s decision she would lift tions as dean are troubling for another omon Amendment’s enforcement. the ban and give the military access to reason as well. I believe her actions as Now, this is very important because the Office of Career Services. But in dean indicate strong evidence that, as the Third Circuit is one of our circuit the meantime, she filed another friend a Justice, someone sitting in judgment courts of appeal in the United States, of the court brief, this time in the Su- on the U.S. Supreme Court, she would but it is not the U.S. Supreme Court. preme Court of the United States, ar- tend to advance her political pref- By that I mean when it makes a deci- guing the Solomon Amendment should erences rather than take a traditional sion, its decision only applies to the not apply to her actions barring the approach of a judge in following the territory or that part of the United military from the Harvard Law law. States that is within the Third Circuit. School’s Office of Career Services. Many of our colleagues have pointed That is important because Harvard is Ultimately, the Supreme Court out correctly that Ms. Kagan has never not in the Third Circuit. Harvard is in unanimously rejected Dean Kagan’s po- been a judge. While that is not a re- the First Circuit. So in effect, the sition and unanimously upheld the Sol- quirement to serve on the Supreme Third Circuit panel’s decision had no omon Amendment. Court, this lack of judicial experience legal effect on Harvard Law School. To recap: Dean Kagan’s ban on mili- makes it difficult to tell whether Ms. Nevertheless, the very next day, after tary recruiters lasted for 10 months— Kagan would adopt a judicial activist the Third Circuit issued its decision, from November of 2004 through Sep- philosophy if she takes a seat on the Dean Kagan changed the Harvard Law tember of 2005. During that entire span Court. Because she has never held the School policy to once again bar the of time, the Department of Defense po- job of a judge—we don’t have any military from using the services of the sition was always—was always—that record to judge her by—we must look Office of Career Services. In other the ban violated the congressionally to the jobs she has held and the actions words, she was not compelled to do so passed Solomon Amendment. Never in she has taken to see how she is likely by law but exercising her discretion as that span of time did the Supreme to perform her job as a member of the dean, she chose to reinstate this policy Court, the First Circuit, or any other U.S. Supreme Court. of barring military recruiters from the court with jurisdiction over Harvard In the 10 months during which she Office of Career Services. adopt Dean Kagan’s view regarding the banned the U.S. military from the Har- Then, in January of 2005, the Third scope or enforceability of the Solomon vard Law School campus, I believe Circuit issued an order staying its en- Amendment. In that span of time, only Dean Kagan showed a willingness to

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It will be an honor on nominated to be one, I see her varied tenuous that it could not garner the behalf of the people of my State to cast background as an asset. We need dif- vote of a single Justice on the U.S. Su- my vote to confirm Elena Kagan. ferent life experiences on the Supreme preme Court, and she did so for the ex- Ms. Kagan is a distinguished lawyer Court. If confirmed, Ms. Kagan will be press purpose of advancing her objec- with a remarkable legal background. the first nonjudge since former Chief tions to a policy she said she abhorred. She brings very diverse experiences to Justice William Rehnquist was nomi- Bending the law and the facts to the Court that I believe will add to the nated by former President Richard reach a preferred result is exactly what important perspective of the high Nixon. judicial activists do, and there is a pat- Court as it reviews cases of critical im- Her mix of professional experience tern in Ms. Kagan’s legal career of portance to the American people. will help ensure that we do not have a bending the law and facts to advance Throughout her career she has been a Court out of touch with the American her preferred policy results. So while legal trailblazer and a role model. She people. Ms. Kagan has taught the law Ms. Kagan has never been a judge, she will be the fourth woman to serve on in the classroom, practiced in the pub- has established a disturbing pattern of the high Court, and for the first time lic and private sector, worked in the doing what judicial activists do. Ms. in history, three women will be serving judiciary as a clerk and crafted the Kagan’s actions in her previous jobs on the bench when oral arguments are policies of the executive branch. Every- showed she is very likely not to em- heard this fall. Her nomination marks where she has worked, Ms. Kagan has brace the role of a judge who decides an historic milestone of progress for excelled. Her experience is the kind of cases based on the Constitution as women in the legal profession and in experience we should aspire for all of written and the law as passed by Con- serving as leaders for our Nation. our justices to have before serving on gress that she is responsible for enforc- A graduate of Harvard Law School, the high Court. ing if they are, in fact, constitutional Ms. Kagan began her career as a law The Supreme Court is too important but, rather, she gives every indication clerk to former Supreme Court Justice to not hold our justices to high stand- of someone who believes it is within Thurgood Marshall, who like her, ards of intellect and achievement—a her role and prerogative as a Justice to served as Solicitor General prior to standard Ms. Kagan meets. It is our basically make the law rather than to being promoted to the high Court. Jus- best and brightest who should serve in enforce the law as written. No Member tice Marshall made history as the first these important positions. We need of this Chamber should be surprised if, African-American Solicitor General at Justices who respect precedent, hew for the rest of her life as a Supreme the time and Ms. Kagan has followed closely to the text of the law and do Court Justice, Ms. Kagan does not suit as the first female Solicitor Gen- not pursue an agenda from the bench. We do not need activist judges merely follow the law as written but, eral. rather, bends the law to advance her Following her clerkship, Ms. Kagan whether they come from the right or progressive political agenda. worked in the private sector where she left. The American people do not want Our Constitution is too precious and handled first amendment, commercial an ideologically driven Supreme Court the Supreme Court is too powerful for and criminal litigation. She then that is pursuing a political agenda. We us to accept without question a Presi- served in the highest ranks of aca- want a Court that respects precedent and helps resolve the legal questions of dent’s nominee to the Supreme Court. demia as a law professor. This ulti- our time as they affect our daily lives. The Framers of the Constitution recog- mately led to her becoming dean at the nized the importance of this appoint- I would like to close by thanking Harvard Law School, one of our na- outgoing Justice John Paul Stevens for ment and the power given to a Su- tion’s most prestigious institutions. preme Court Justice, who serves for his service to our country. Justice Ste- Her ascension to dean marked the first life without any political account- vens presided on the Court during a pe- time in Harvard Law School’s 186-year ability to the electorate. That is why riod of great change and accomplish- history that a woman held this posi- they gave us the responsibility to give ment for our nation. He is a member of tion. As dean, Ms. Kagan bridged ideo- our advice and consent. the Greatest Generation and is a true The nomination and confirmation of logical divides among faculty, recruit- patriot for his service during World a Supreme Court Justice is really a ing professors from across the ideolog- War II. Justice Stevens has been an in- two-step process. First, the President ical spectrum, managing the largest tellectual heavyweight on the bench makes his nomination. The President and most prestigious law school in our and provided a voice of reason even can nominate anyone the President nation and improving the quality of while we have seen the Court drift so wants who meets the qualifications of life for students. heavily in favor of the most powerful the Constitution. But then it is our re- Prior to becoming dean, Ms. Kagan interests. He has left large shoes to fill sponsibility to exercise our constitu- served in high legal and policy posi- and will be missed. tional duty to provide advice and con- tions in the Clinton administration, President Obama has nominated sent. where she learned the operations of the someone who can fill these shoes. Be- I believe Ms. Kagan has failed to em- executive and legislative branches of cause of the breadth and diversity of brace the traditional view of judging our government, which will help the her experience, Elena Kagan has a pro- that I believe all judges must adhere to Court better understand how policy found understanding of the law and ef- at the risk of, rather, them becoming a judgments are made and the effect that fect the Supreme Court has on the lives lawmaker, which is incompatible with the decisions of our government and of all Americans. She is an intellectual the role of a Justice. I believe a judge courts have on the lives of everyday heavyweight in her own right and will who assumes a role of being a policy- Americans. help the Court bridge the divides of re- maker or a lawmaker is, in essence, a Most recently, Ms. Kagan has duti- cent years. lawbreaker. fully served our Nation as the U.S. So- I am proud to commit my vote in Indeed, Ms. Kagan’s career up to this licitor General. The Solicitor General favor of this nominee. point shows a willingness to bend the is often referred to as the 10th Justice Mr. HARKIN. Mr. President, I am law and the facts to advance her own because of the frequency that he or she proud to support the confirmation of beliefs, and I fear this trend will con- appears before the Court on behalf of Solicitor General Elena Kagan as the tinue in an activist tenure on the Su- the United States. This experience ex- next Associate Justice of the United preme Court. For these reasons, I op- posed Ms. Kagan to nearly every case States. pose her nomination and will vote no. that has come before the current Court Solicitor General Kagan is eminently Mr. BENNET. Mr. President, I rise in and she has had to weigh all of the qualified to serve on our Nation’s high- strong support of the President’s nomi- same legal considerations as the cur- est Court. As a student, she excelled at

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She has stellar legal creden- glory.’’ I am hopeful that Solicitor doing so, it reversed a well established, tials that have been recognized by lib- General Kagan will follow in the best 20-year-old standard, consistent with eral and conservative lawyers alike. traditions of Judge Mikva and Justice that under title VII of the Civil Rights And, throughout her career, including Marshall and continue to strive to Act, that a plaintiff need only show as a professor of law, as a key advisor make our Nation’s laws more just. that membership in a protected class to President Clinton, as dean of Har- Considering her outstanding intellect was a ‘‘motivating factor’’ in an em- vard Law School, and as Solicitor Gen- and credentials, there simply is no ployer’s action. Instead, the Court held eral, she has demonstrated a great doubt Solicitor General Kagan should that a plaintiff alleging age discrimi- mind and intellect. be confirmed. nation must prove that an employment Moreover, Solicitor General Kagan However, for me, there is another, action would not have been taken will bring important diversity to the equally important, consideration. I against him or her ‘‘but for’’ age. In Court. First, when the Senate confirms also believe that Solicitor General other words, the plaintiff must now her, she will be only the fourth woman Kagan will be an important and needed prove that age discrimination was not to serve on the Court; and for the first voice on the Court to ensure that ap- a cause or a motivating factor, but time in history, three women will serve propriate respect and deference is that it was the determinative cause of on the Supreme Court together. given to Congress, and proper effect is an adverse employment action. Prov- Second, Solicitor General Kagan’s ex- given to our most important statutes, ing ‘‘but for’’ cause is extremely dif- periences as someone who has worked such as the Americans with Disabil- ficult and will greatly limit potentially in the legislative and executive ities Act, the Civil Rights Act, and the meritorious suits involving discrimina- branches will provide a vital perspec- Age Discrimination in Employment tion Congress sought to prevent. tive that is currently lacking among Act, so all Americans receive the full- In doing so, the Court did not even the Justices. In fact, for the first time est protections of the law. address the question on which it grant- in history, the current Court is com- Too often debate regarding the Su- ed certiorari. As Justice Stevens noted prised entirely of Justices who were preme Court seems to focus on a hand- in dissent, ‘‘I disagree not only with promoted directly from the lower Fed- ful of divisive cultural issues. Indeed, the Court’s interpretation of the stat- eral courts. While judicial experience is many of my colleagues on the other ute, but also with its decision to en- important, it is also important to rec- side of the aisle have come to the floor gage in unnecessary lawmaking. The ognize that some of our most con- to focus on gays in the military, abor- Court is unconcerned that the question sequential Justices—Louis Brandeis, tion and guns. To be sure, these issues it chooses to answer has not been Felix Frankfurter, Earl Warren, Robert are important. But, what typically get briefed by the parties or uninterested Jackson and William Rehnquist, to overlooked in a debate like this are the amici curie. Its failure to consider the name just a few—did not have prior ju- many technical, statutory cases—often views of the United States, which rep- dicial experience. I am glad the Presi- involving esoteric legal principles— resents the agency charged with ad- dent recognized how crucial it is to that nonetheless have a tremendous ministering the [Age Discrimination in have on the bench Justices with varied impact on the everyday lives of ordi- Employment Act], is especially irre- life experiences. nary Americans. sponsible.’’ Mind you, I am hopeful that next Unfortunately, the sad truth is that, In University of Alabama v. Garrett, time the President will look to one of in case after case, often in narrow 5–4 a case whose oral arguments I person- the many qualified lawyers who did not decisions, today’s Court has too often ally attended, the Court limited the graduate from Harvard or Yale, or one slammed shut the courthouse door in rights of people with disabilities. In who resides east of the Appalachian the face of these ordinary Americans. doing so, it ignored numerous congres- Mountains. But nominating someone The Court has used arcane legal doc- sional hearings and a task force which from outside the Federal courts is a re- trines and strained readings of Federal collected evidence through 63 public fo- freshing change. statutes to prevent citizens from vindi- rums around the country attended by As I evaluate Solicitor General cating their civil rights and consumer more than 7,000 persons. In United Kagan’s qualifications, an additional protections. The result is that many States v. Morrison and Kimel v. Flor- factor is important for me: she clerked people who suffer grievous wrongs are ida Board of Regents, the Court com- and learned from two judges for whom not able to bring meritorious lawsuits, pletely ignored extensive congressional I have enormous respect—Judge Abner and to hold corporations and the gov- fact-finding and struck down parts of Mikva and Justice Thurgood Marshall. ernment accountable. the Violence Against Women’s Act and These two jurists exhibited a deep and In case after case, the Court has un- the Age Discrimination in Employment abiding passion for justice, and each dermined vital protections and sided Act, respectively. strived throughout his career to ensure with the powerful against the power- The contrast with Solicitor General that ‘‘equal justice under law’’ is more less—for instance, in cases such as Kagan is stark. She repeatedly made than an ideal chiseled on a marble fa- Ledbetter v. Goodyear, Gross v. FBL clear her approach to judging: respect cade, but a concrete reality for all our Financial, and Riegel v. Medtronic. In for congressional intent and for long citizens. doing so, the Court has repeatedly ig- standing precedent. She consistently In her opening statement before the nored the clear intent of Congress in made clear that a judge’s personal Judiciary Committee, Solicitor Gen- passing important laws. views should play no role in inter- eral Kagan noted: In the ‘‘Sutton trilogy’’ the Court re- preting a statute and ‘‘the only ques- My first real exposure to the Court came peatedly misread the Americans with tion is Congress’s intent.’’ Unlike some almost a quarter century ago when I began Disabilities Act and narrowed the current members of the Court, more- my clerkship with Justice Thurgood Mar- scope of individuals deemed eligible for over, she made clear that where the shall. Justice Marshall revered the Court— protection under that landmark stat- text of a statute is ambiguous she will and for a simple reason. In his life, in his great struggle for racial justice, the Supreme ute. The result of these decisions was look to legislative history—‘‘a judge Court stood as the part of government that to eliminate protection for countless should look to other sources, should was most open to every American—and that thousands of Americans with disabil- look to the structure of the statute, most often fulfilled our Constitution’s prom- ities. These flawed, harmful decisions should look to the history of the stat- ise of treating all persons with equal respect, were reversed in the last Congress ute in order to determine Congress’s equal care, and equal attention. when we unanimously enacted the ADA will.’’ After her confirmation hearing In a 1993 law review article, she ex- Amendments Act. and based on my personal meeting with pressed a fondness for Justice Similarly, in June, 2009, the Supreme her, I am convinced she will give full Thurgood Marshall’s vision of constitu- Court decided Gross v. FBL Financial, effect to our most important statutes. tional interpretation, which she de- Inc. In a case involving an Iowan, Jack Finally, as I listen to the debate sur- scribed as ‘‘demand[ing] that the Gross, the Court made it harder for rounding Solicitor General Kagan’s courts show a special solicitude for the those with legitimate age discrimina- confirmation, I find it remarkable that despised and disadvantaged.’’ She de- tion claims to prevail under the Age conservatives continue to accuse every

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I hope that she will keep this in want to use the courts to achieve a de- Court. mind before she votes to overturn a bill sired political result and to thwart the First, I commend the chairman of the that Congress may have spent years democratic will of the people, as ex- Judiciary Committee and his staff for drafting and debating. pressed through their elected rep- their efforts to make this confirmation But while this deference is impor- resentatives. process so thorough and transparent. tant, Solicitor General Kagan also For example, the ranking member of The committee had the opportunity to demonstrated that she recognizes the the Judiciary Committee, Senator SES- review nearly 200,000 pages of internal critically important role of our judicial SIONS, noted his concern that Solicitor memos and emails from Ms. Kagan’s system in serving as a check on the General Kagan ‘‘will bring to the bench service as a law clerk to Justice other branches of government—in ‘‘po- a progressive activist judicial philos- Thurgood Marshall and as a White licing constitutional boundaries,’’ as ophy which holds that unelected judges House aide during the Clinton adminis- she put it. She spoke eloquently about are empowered to set national policy tration—making the examination of the early experiences of Justice Mar- from the bench.’’ her record one of the most thorough shall and his efforts to eradicate Jim I find it ironic that this charge is and searching in history. I appreciate Crow laws and racial segregation. She bandied about by the same people most that President Obama and President explained that what was so incredible eager to have the courts strike down as Clinton did not raise claims of execu- about his struggle for equality was unconstitutional the recently enacted tive privilege to try to stop the release that ‘‘the courts [took] seriously health care reform bill. To strike down of documents, which was a refreshing claims that were not taken seriously this law would require an unelected change and a practice that I hope fu- anyplace else. . . . In other words, it judge to ignore the clear language of ture Presidents will follow in years to was the courts’ role to make sure that the Constitution, reverse precedents come. even when people have no place else to that go back to John Marshall, dis- All but a tiny fraction of these docu- go that they can come to the courts regard extensive fact-finding by Con- ments were made available online, and the courts will hear their claims gress, and overturn a decision of a ma- granting extraordinary access to the fairly.’’ She said this was a miraculous jority of both Houses of Congress and public. I said after last year’s hearings thing about courts, and I agree with the President of the United States. for Justice Sotomayor that Chairman her. With regard to executive power, That would be the height of judicial ac- LEAHY had set a new standard for she emphasized that ‘‘no person, how- tivism, the height of ‘‘making national transparency and public access to Su- ever grand, however powerful, is above policy from the bench.’’ preme Court nomination hearings, and the law.’’ She also talked about ‘‘the The reality, is that, the Rehnquist in these proceedings he did it again. I importance of adhering to the law, no and Roberts Courts have invalidated commend him and his staff for their matter the temptations, no matter the more laws than any previous Courts. pressures that one might be subject to It is conservatives who not only want tremendous work over the past few the Court to make national health care months. in the course of one’s career.’’ These There is no question that Elena policy, but also to limit the ability of insights indicate that she will take se- Kagan is eminently qualified for a posi- Congress to keep the corrupting influ- riously the Court’s role in safeguarding tion on the Supreme Court. She has an ence of corporate spending out of our individual rights and protecting the democracy, as the Court did in Citizens impressive education, she has worked rule of law. In addition to informing the com- United. at the highest levels of government, It is conservatives who second guess and she has served as dean of a top law mittee about the nominee, the hearings decisions by Congress, including a school. During the hearings, she dem- also taught us more about the Supreme unanimous Senate, to ensure the rights onstrated a keen mind, thoughtful Court. We have heard a lot in recent of all Americans to vote, as the Rob- analysis, and a wide-ranging command years about ‘‘judicial activism.’’ But I erts Court suggested in Northwest Aus- of the law. She has developed a reputa- think the hearings helped underscore tin Municipal Utility District No. One tion as someone who can reach out to that activism is in the eye of the be- v. Holder. those with whom she may not agree holder. As Justice Souter explained in It is conservatives who want the judi- and work together, and that skill a recent speech, the truth is that the ciary to second guess decisions made should prove very valuable on the Supreme Court has to decide hard by local sheriffs in keeping guns out of Court. I believe that because she has cases—cases in which a judge cannot the hands of criminals. not previously been a judge, she will simply read the words of the Constitu- It is conservatives who want the judi- bring a different and important per- tion and objectively evaluate the facts. ciary to second guess local zoning deci- spective to a Court that is otherwise That is, a judge cannot simply act as sions, environmental and land use reg- entirely populated by former appellate an umpire. Judges often have to choose ulations. judges. between positive values in the Con- It is conservatives who want the I appreciated Solicitor General stitution that are in tension with each courts to invalidate efforts by Congress Kagan’s efforts to improve the con- other, he noted. and local governments to eliminate ra- firmation process by being forthcoming Justice Souter reminded us that cial discrimination. in her answers. Fifteen years ago she facts may look very different in dif- Given the current Court’s repeated quite fairly criticized the process in an ferent historical contexts. The quin- disregard for Congress and for our ef- article, arguing that the American peo- tessential example of this is the forts to expansively protect American ple deserved more substantive discus- Court’s historic decision in Brown v. citizens, I believe it is imperative that sions of the law. While I can’t say that Board of Education to overturn Plessy the next justice be someone who re- she quite lived up to the high standard v. Ferguson—a case that by current spects precedent, strives to apply con- that she set for nominees in 1995, I do standards would surely qualify as judi- gressional intent and purpose, and un- believe that she tried to answer our cial activism but that is one of the derstands the importance of this na- questions as openly and comprehen- most revered in our nation’s history. tion’s landmark civil rights protec- sively as she could, given what the con- What this shows us is that judging is tions. Based on her record and after firmation process has become. not a ‘‘robotic enterprise,’’ as Solicitor meeting her, I am confident Solicitor I came away from the confirmation General Kagan told the Senator from General Kagan will be that type of ju- process convinced that Elena Kagan Minnesota, Ms. KLOBUCHAR. Judging is rist. understands the appropriate relation- hard and it does, in fact, require judg- Solicitor General Kagan clearly has ship between the courts and Congress. ment. But, Justice Souter explained, the intellect, experience and judgment As she explained at the Judiciary Com- ‘‘we can still address the constitutional

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When considering my vote on nomi- Kagan will make the Nation’s highest So I will vote to confirm Elena nees to the Supreme Court, my key Court ‘‘more inclusive, more represent- Kagan to be an Associate Justice of the test is whether or not the President’s ative, more reflective of us as a people U.S. Supreme Court. I look forward to nominee is qualified to serve on the than ever before.’’ her confirmation as only the fourth Court, not whether I agree with every- I am confident that Solicitor General woman in history to serve on our Na- thing he or she have ever done. As Sen- Kagan has the experience that will tion’s highest Court, and I expect she ators, we must examine the record, ac- make her a stellar Justice, and I look will serve with distinction—and with complishments, intellect, and char- forward to casting my vote in favor of good humor, which she demonstrated acter of each judicial nominee put be- her confirmation to the Supreme throughout this arduous process—for fore us, and determine whether each in- Court. many years to come. dividual is worthy to serve on the Mrs. LINCOLN. Mr. President, I come Mr. CONRAD. Mr. President, I rise bench. This is the standard I used when here today to discuss one of the most today to express my support for the I voted to confirm Chief Justice John important duties we exercise as Sen- confirmation of Elena Kagan to serve Roberts, Justice Samuel Alito, and ators the confirmation of a United as the next Associate Justice of the Su- Justice Sonia Sotomayor. And that is States Supreme Court Justice. preme Court. the standard I am using in voting to As a U.S. Senator, I have a responsi- Having carefully examined her confirm Elena Kagan. bility under the Constitution to deter- record, monitored her confirmation Mr. UDALL of New Mexico. Mr. mine if nominees to the Supreme Court hearings, and personally met with her, President, I rise today to talk about are qualified for the job. In making Solicitor General Kagan is clearly Solicitor General Kagan’s experience. this determination, I consider a nomi- qualified to serve on the Court. Given Over the past few months, there has nee’s knowledge of the Constitution her tremendous educational accom- been a lot of talk from our friends and the law as well as their ability to plishments at Princeton, Oxford, and across the aisle about whether Ms. be deliberate and to hear every case Harvard, as well as her success as a Kagan is qualified to be our country’s that comes before them impartially constitutional and administrative law 112th Supreme Court Justice. and without personal bias. scholar at Chicago and Harvard, there They say she has never been a judge. I believe Ms. Kagan passes that test is little question that she is intellectu- How conveniently they forget that and that she is qualified to serve on the ally qualified for the job. some of the most well-respected Jus- U.S. Supreme Court. General Kagan has had an impressive tices in the history of the Supreme I have made this decision after care- career, having clerked for Supreme Court also brought life experiences out- fully reviewing the Judiciary Com- Court Justice Thurgood Marshall, side the ‘‘judicial monastery,’’ which mittee record on her nomination and worked as the first female dean of Har- visiting with Ms. Kagan personally on vard Law School, and served as the President Obama so ably encouraged us to look beyond. Former Chief Justice two occasions to discuss her nomina- first female Solicitor General of the tion. I was impressed with her knowl- United States. During that time, she William Rehnquist is one example. edge, humility, and candidness, and I has impressed all with whom she has Former Justice Lewis Powell, Jr., is believe she was as forthcoming in our worked with both her character and another. conversations as any individual whose her talent. They also conveniently forget that Some of my colleagues are concerned just a few decades ago, most Justices Supreme Court nomination I have con- that previous Federal judicial experi- had little or no judicial experience. In sidered. As Solicitor General for the United ence is not among her list of accom- fact, it is General Kagan’s diversity of plishments. Historically, however, life experiences that, in my opinion, States, Elena Kagan served as the Fed- large numbers of our Supreme Court make her exceptionally qualified for eral Government’s lawyer in chief, rep- nominees have not had prior judicial the High Court. President Obama said resenting all Americans, including Ar- experience. The last Supreme Court one of the primary reasons he nomi- kansans, before the U.S. Supreme nominee appointed without any such nated General Kagan was because of Court. experience served was former Chief her ‘‘understanding of law—not as an A passion for public service and the Justice William Rehnquist. intellectual exercise or words on a law has been the driving force behind Indeed, the outgoing Court rep- page—but as it affects the lives of ordi- her career. Elena Kagan is the first resents the first time in history when nary people.’’ I couldn’t agree more. woman to serve as Solicitor General, all nine Justices had Federal judicial The inscription that greets visitors and the first woman to serve as the experience. That is what prompted Jus- to the Supreme Court building just Dean of Harvard Law School. She pre- tice Antonin Scalia to say that he was across the street reads: ‘‘Equal Justice viously worked in the Clinton White ‘‘happy to see that this latest nominee Under Law.’’ That inscription is at the House as Deputy Assistant to the is not a federal judge.’’ I share that heart of the experience General Kagan President for Domestic Policy and as view, and welcome the unique aca- would bring as the newest member of Associate Counsel to the President. demic perspective that General Kagan the High Court. She spent several years in private prac- will bring to the Court. That experience includes a reputa- tice after serving as a law clerk for the Others with concerns about General tion as one of the Nation’s foremost U.S. Court of Appeals for the District Kagan have pointed to her treatment legal minds; as a legal advisor to two of Columbia, and for Justice Thurgood of military recruiters as the dean of Presidents; as the first woman to serve Marshall on the U.S. Supreme Court. Harvard Law School or memos she as Dean of Harvard Law School; and as I believe the fact that Elena Kagan wrote when she was an advisor in the the Nation’s first female solicitor gen- has not worked as a judge will benefit Clinton administration. In addition to eral. the Court. She will bring a fresh voice the explanations provided to me by It also includes more personal experi- and unique perspective to the discus- General Kagan during our meeting, I ences, many of which mirror the lives sion on cases that come before the am reassured about these controversies of the American people she has com- Court. There is already a persuasive by the fact that she has received strong mitted her own life to serve. precedent for a nominee with no judi- support from legal minds across the po- She is the child of immigrants. She is cial experience to serve on the U.S. Su- litical spectrum. the daughter and sister of public preme Court. In fact, 41 Supreme Court General Kagan has earned high praise schoolteachers, and she has been a justices, including Chief Justice Wil- from conservatives like Jack Gold- teacher herself. She is an advocate for liam Rehnquist, had no experience

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But being a Supreme Court Justice this position in May, I have heard from Both in our personal conversations requires more than surviving the con- many Arkansans both for and against and in her testimony before the Senate firmation process. If confirmed, Ms. her confirmation. In terms of the con- Judiciary Committee, Ms. Kagan has Kagan would be ruling on the most im- cerns that have been raised by those explained her actions as Dean of Har- portant and urgent matters facing our who oppose her confirmation, I have vard Law School regarding military re- Nation. Her voice would carry with it examined her record regarding those cruiting. the rich and varied background of pro- issues and have spoken to the nominee The bottom line for me is that Elena fessional experience that would sound a on two occasions to discuss those mat- Kagan never denied military recruiters note of true intellectual independence. ters further. After careful thought and access to students on campus and that Although some have found fault with consideration in fulfilling my responsi- she holds the men and women in uni- the fact that she has never served as a bility to judge her fitnesss for this po- form who fight to defend the freedoms judge, I have never believed that lack sition, I have found nothing that I be- we cherish as Americans in high re- of prior judicial experience should stop lieve disqualifies her from being con- gard. Evidence of this is supported by someone from serving with distinction firmed. military veterans themselves associ- on the Court. After all, some of our There is no doubt Elena Kagan holds ated with the law school who have spo- greatest jurists had no experience as a the Constitution and the Court’s prece- ken favorably of Ms. Kagan’s treat- judge—Justices John Marshall, Louis dents in high regard. During her nomi- ment of students in the military and Brandeis, Felix Frankfurter, and Wil- nation hearings, Elena Kagan re- the military in general. A group of liam Rehnquist among them. In place sponded to numerous questions about a Harvard Law School Iraq War Veterans of that singular legal experience, Ms. variety of issues. In response to one published a letter stating that Kagan, Kagan brings expertise that she has question regarding recent Supreme ‘‘has created an environment that is earned in all three branches of govern- Court rulings involving the Second highly supportive of students who have ment, as well as the private sector as Amendment, she stated, ‘‘there is no served in the military.’’ an attorney in private practice and as question that the Second Amendment It is also worth noting that Solicitor the dean of Harvard Law School. guarantees Americans the individual General Kagan is supported by a long In talking with Ms. Kagan, I came right to possess and carry weapons in and distinguished list of law associa- away confident that she well under- case of confrontation.’’ Further, Gen- tions, organizations, members of Re- stands the proper role of a judge and eral Kagan explicitly said that the re- publican and Democratic administra- will not attempt to legislate from the cent Heller and McDonald decisions tions, unions, advocates and profes- bench. I discussed with Ms. Kagan her that secure a fundamental and indi- sionals. The list of supporters even in- views and approach to some of the im- vidual right to own a firearm for self cludes every former Solicitor General portant issues the Court will address in protection is ‘‘settled law.’’ Ms. Kagan since 1985, including Ted Olsen and Ken upcoming years, such as national secu- has personally assured me she has no Starr. rity, the limits of executive power, and desire or intention of working to over- As I have said with previous Supreme the protection of civil liberties. turn either decision. Court nominees selected by two dif- I also spoke with Ms. Kagan about an It is true Ms. Kagan has not promised ferent Presidents, I won’t agree with issue of particular concern to Orego- how she would decide future Second every decision that he or she makes. nians one which they have endorsed Amendment cases that may come be- However, the standard for evaluating twice at the ballot box—the right to fore the Court. Neither Justice Roberts Supreme Court nominees should be control end-of-life decisions. Oregon nor Justice Alito made any pledges or whether he or she is qualified for the voters twice approved death with dig- promises in that regard either during job and is prepared to place the law and nity ballot measures. I have long be- their confirmation hearings. To do so the integrity of our Constitution ahead lieved that their decision should be re- would betray one of the basic founda- of any personal or political beliefs he spected by the courts, and I am pleased tions of our system of government or she may have. I believe Ms. Kagan the Supreme Court has agreed with which is a fair minded and independent meets that standard which is why I that view. While not taking a position judiciary. Further, after reviewing the will support her confirmation. on specific questions that could come Judiciary Committee hearing record Mr. WYDEN. Mr. President, I rise in before the Court, Ms. Kagan reassured for Ms. Kagan, Justice Roberts and support of the nomination of Solicitor me that she sees this as Oregonians do. Justice Alito, in my view Ms. Kagan General Elena Kagan to serve as Asso- She believes end-of-life decisions are was as, if not more, forthcoming re- ciate Justice of the United States Su- protected by constitutional privacy garding her views on the Second preme Court. A lifetime appointment rights, and she believes the Federal Amendment than the two most recent to the highest Court in the land is a se- Government should not contravene nominees made by a Republican Presi- rious matter, and confirming each Jus- State laws that protect individual dent. tice is one of the most solemn duties of rights on this issue. One final comment General Kagan any Senator. Finally, I was also comfortable with made to me during our last conversa- When I sat down with her, I was the way Ms. Kagan explained her views tion about the Second Amendment was struck by Ms. Kagan’s obvious intel- on a frequently litigated constitutional her desire to join Justice Scalia on one ligence and candor. It was also obvious issue, the limits of congressional power of his hunting trips to get better ac- that her wealth of professional experi- to act under the commerce clause. Ms. quainted with her colleagues on the ence has given her a real reverence for Kagan’s answers assured me she has a Court if she is confirmed. Sounds like a our country’s rule of law. As the con- very thorough and nuanced under- good idea to me. firmation process went on, I paid close standing of commerce clause jurispru- Elena Kagan has also shared with me attention to the answers Ms. Kagan dence and that she will rule on com- her deep respect and honor for the mili- gave to my colleagues on the Judiciary merce authority cases with both def- tary and the men and women in uni- Committee in her hearing. What comes erence and wisdom. form who risk their lives to defend our across loud and clear when one listens I am convinced, based on everything freedoms. Her father was a veteran, to Ms. Kagan is that she has a strong I have heard, that Ms. Kagan possesses and she has taken with her the rev- belief in the Constitution and an un- the intellect, integrity, and independ- erence for the military he instilled in derstanding of its purpose to serve and ence to serve as an extraordinary Jus- her. In 2007, Elena Kagan was invited to protect the American people. tice on the Supreme Court. With the speak at West Point military academy, Throughout the arduous process of retirement of Justice Stevens, Ms. where she spoke to cadets about fidel- being a Supreme Court nominee, Ms. Kagan certainly has large shoes to fill.

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Mr. President, I am private airplanes. Unlike much of the spill, yet Exxon took every possible ad- pleased to support the nomination of ‘‘Lower 48,’’ the wilderness in Alaska is vantage in the U.S. court system to Solicitor General Elena Kagan as Asso- reachable within minutes from even delay payment of damages as long as ciate Justice on the U.S. Supreme our largest cities. Even in the greater they could. As a result, an estimated 20 Court. By any objective standard, Anchorage area encounters with wild- percent of those damaged by the spill Elena Kagan offers a well-rounded life are commonplace and serious inju- died before they could collect any com- combination of academic legal exper- ries occur regularly. That is why fire- pensation. Ms. Kagan agreed with the tise and real world application of law arm ownership and use in Alaska tran- tragedy of that case and expressed frus- and public policy. The President has scends the debates in Washington over tration with it dragging on so long. nominated Ms. Kagan to a job she may what the second amendment means. Mr. President, because of what I have hold for three decades or more, and in Much of the opposition to Ms. learned in looking at the career and which she will have the opportunity to Kagan’s nomination has focused on record of Ms. Kagan, and reviewing her touch the lives of Americans in count- what some charged was her alleged statements and testimony on matters less ways. So just being an intelligent lack of support for second amendment that are important to the people of and hard-working public servant is not rights. Some oppose Ms. Kagan’s nomi- Alaska I am privileged to serve, I am enough for this vital position. That is nation because she worked for Justice pleased to confirm Elena Kagan as an why I have taken my time and my re- Thurgood Marshall and President Bill Associate Justice on the U.S. Supreme sponsibility seriously, to thoroughly Clinton. When she was asked by Judici- Court. review her record before deciding to ary Chairman LEAHY if, after the Su- Ms. SNOWE. Mr. President, I rise support her. preme Court’s decisions in Heller and today to speak to the nomination of Decisions by the Supreme Court have McDonald that the second amendment Solicitor General Elena Kagan to be immediate impacts on the lives of ev- secures an individual’s fundamental the next Associate Justice of the Su- eryday Americans when the rulings are right to own a firearm and use it for preme Court of the United States. handed down. These decisions may con- self-defense, Ms. Kagan’s response After a careful and considered review tinue to play a role in the lives of could not have been more clear: ‘‘There of her testimony before the Senate Ju- Americans for generations. Considering is no doubt, Senator LEAHY. That is diciary Committee, her overall record, my vote on a Supreme Court nominee, binding precedent and entitled to all and my personal meeting with her in a task I will perform soon for the sec- respect to binding precedent in any May, I have concluded that General ond time in my brief Senate career, is case. That is settled law.’’ Instead of Kagan should be confirmed as the next a duty I take very seriously. second-guessing or making assump- Associate Justice of the Supreme I approach this decision from the per- tions about her views, I am taking Ms. Court. spective of a government chief execu- Kagen at her word. General Kagan would succeed Justice tive. It is the constitutional role of the Even before the Court’s decision in John Paul Stevens who has served our President to nominate Supreme Court McDonald applied the reasoning of country as a decorated war veteran, a justices. In the case of a nominee to Heller beyond the District of Columbia, distinguished Federal appellate judge, the Federal courts, especially to the Ms. Kagan was clear about the funda- and a Supreme Court Justice for nearly Supreme Court, this choice is not mental nature of the rights protected 35 years. I appreciate his service to our about a President’s ability to carry out by the Second Amendment. During her Nation, and believe that all of us in a stated agenda. Rather, justices on confirmation hearing to be Solicitor public service can learn from his dig- the highest court in the land are there General, Ms. Kagan responded to a nified manner and sound advice to ‘‘un- to protect and interpret the Constitu- question about the meaning of Heller derstand before disagreeing.’’ tion, so the highest standards must be from Senator GRASSLEY: ‘‘There is no As with the previous nominees to the applied. question, after Heller, that the second Court that I have had the responsi- In my meeting with Solicitor General amendment guarantees Americans the bility to review, I have not arrived at Kagan, I found her to be intelligent and individual right to possess and carry my decision lightly. It has been said engaging, and open to hearing my weapons in case of confrontation.’’’ In that, of all the entities in government, thoughts on what is important to Alas- subsequent questioning, Ms. Kagan re- the Supreme Court is the most closely kans. I listened as Ms. Kagan described sponded regarding Heller that she identified with the Constitution—and the way she approached legal issues, would give that decision and its rea- that no other branch or agency has as and heard from her an approach to the soning ‘‘the full measure of respect great an opportunity to speak directly law and the Constitution that indi- that is due to all constitutional deci- to the rational and moral side of the cated she will not be an activist judge. sions of the Court.’’ American character; to bring the power I agree with my colleague from South What Elena Kagan said about the and moral authority of government to Carolina, Senator LINDSAY GRAHAM, second amendment, especially in light bear directly upon the citizenry. who said the job of a senator is not to of the Heller and McDonald decisions The Supreme Court passes final legal second guess the President’s judgment that I supported, cannot be considered judgment on the most profound social in selecting Supreme Court nominees, anti-gun, or anti-second smendment. issues of our time. The Court is unique- but to determine if the candidate is In our meeting, I also asked Ms. ly designed to accept only those cases qualified, of good character and under- Kagan about unique status of Alaska that present a substantial and compel- stands the difference between being a Native people and issues. I pointed out ling question of Federal law; cases for judge and a politician. Ms. Kagan is that Alaska is home to nearly half the which the Court’s ultimate resolution such a person. 562 federal recognized tribes in the will not be applied merely to a single, For me as an Alaskan, there were United States and that Alaska Natives isolated dispute—but, rather, will some issues I needed to make front and comprise nearly 20 percent of our guide legislatures, executives, and all center in our discussion, especially the State’s population. Ms. Kagan admit- other courts in their broader develop- rights we enjoy and which the Supreme ted to being no expert in ‘‘Indian law,’’ ment and interpretation of law and pol- Court has recently spoken to under the but expressed a willingness to learn icy. Ours is a government of liberty second amendment of the Constitution. about the challenges and opportunities and order, of State and Federal author- Alaskans take their second amend- facing Alaska Native people. She also ity, and of checks and balances, and ment rights very seriously. In a State expressed support for encouraging the the remarkable challenge of cali- where the daily life for many includes courts to adopt procedures making it brating these fundamental balance

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All Supreme Court law, and of the essential requirement principled understanding of the Court’s Justices, regardless of judicial philos- not to prejudge any case, stating dur- role, and a sound commitment to judi- ophy, weigh the Constitution’s text, ing her hearing that judging is about cial method. A nominee must have the history, context and precedents when ‘‘what the law says, whether it’s the capacity to engender respect among deciding the landmark cases. Active Constitution or whether it’s a statute the other Justices in order to facilitate practice of law experience helps with . . . the question is always what the the consensus of a majority. And to that process because, as prior Justices law says . . . it’s what the text of the warrant Senate confirmation, the and distinguished scholars alike have Constitution says . . . what the law nominee must have a keen under- observed, the Justices’ decisions in says, not a judge’s personal views.’’ standing of, and a disciplined respect landmark cases are inevitably ‘‘chan- Turning to the considerations of judi- for, the great body of law that precedes neled and constrained by who [they] cial methodology and integrity, Gen- her. are and what they have lived through.’’ eral Kagan does not have a judicial It is with these high standards that General Kagan has not given us the service record to review. We can, how- we should also evaluate the record of clearest insight into those experiences ever, examine her scholarship. Here, General Kagan to serve as the Court’s that she has ‘‘lived through’’ that will she has six scholarly articles, two 112th Justice. General Kagan is a dis- ‘‘channel and constrain’’ her sense of scholarly book reviews and a variety of tinguished graduate from Princeton, constitutional boundaries. At the same other commentaries. I have some con- Harvard, and Oxford Universities where time, I find that her experience in cern that this collection is, by she earned several distinct honors. She working at the highest levels of all academia’s standards, not especially served as a law clerk to two judges, three branches of government will pro- prodigious, and that General Kagan did United States Court of Appeals Judge vide her with valuable insights as she not continue her scholarship during Abner Mikva and United States Su- approaches her work on the Court. I her six years as Harvard’s dean. preme Court Justice Thurgood Mar- also accept her comments from our Her eight scholarly publications do, shall. General Kagan then worked in personal meeting that she did indeed however, tackle the difficult subjects private practice as an associate at a have a ‘‘formative experience’’ as a of Presidential power, the delegation leading D.C. law firm and a law pro- young lawyer in learning that ‘‘behind doctrine, and hate speech. In par- fessor at two of the Nation’s most re- legal questions are real people with ticular, her Presidential Administra- garded law schools. real lives.’’ tion and Chevron’s Non-delegation General Kagan has also served as a As regards General Kagan’s lack of Doctrine article from 2001, as well as special counsel for the Senate Judici- prior judicial service, I do not find that The Changing Faces of First Amend- ary Committee; a lawyer in the Office to be disqualifying. Nearly 40 Justices ment Neutrality article from 1992, dem- of the Counsel to a President; a policy have served on the Court without prior onstrate both close attention to com- advisor to a President; and dean of the judicial experience, including in more plicated legal detail and careful legal Harvard Law School. Most impor- recent times Louis Brandeis, Hugo analysis—skills essential for the dif- tantly, she has served as the 45th Solic- Black, Robert Jackson, Earl Warren, ficult work of the Court. itor General of the United States where Lewis Powell, and William Rehnquist. We can also review her approach to she has participated in six oral argu- Especially on the current Court where judicial methodology from her answer ments and overseen briefs and certio- all of the existing members come from to my request to identify three of the rari petitions in approximately 100 the Federal appellate courts, General Court’s constitutional opinions—ma- cases. Kagan should bring a new and different jority, concurring or dissenting—that For her work as Solicitor General, perspective. in her view exemplify sound judicial Ms. Kagan has won the support of This brings us to the additional fac- methodology. First, General Kagan every one of the 10 Solicitors General tors we must consider when providing chose Justice Oliver Wendell Holmes’ who have served since 1985, including 5 our consent on a President’s nominee 1905 dissenting opinion in Lochner v. Republican appointees. She has also for Associate Justice—judicial tem- New York. In that case, the Court in- earned the support of over 50 deputy perament, methodology, integrity and validated a State law prohibiting an and assistant solicitors general who philosophy. By their very nature, these employer from requiring a baker to have served over the last 42 years. attributes are often challenging to work more than 60 hours per week. The As these highly skilled professionals measure, but they can be assessed Court reasoned that the statute ‘‘nec- have noted, the ‘‘job of Solicitor Gen- through a careful analysis of a nomi- essarily interferes with the right of eral provides an opportunity to grapple nee’s complete record. contract between the employer and em- with almost the full gamut of issues With regard to the first consider- ployees,’’ a right that is ‘‘part of the that come before the Supreme Court ation, judicial temperament, we all liberty of the individual’’ protected by and requires an understanding of the agree that it is absolutely essential the 14th amendment. Court’s approach to numerous issues that a judge be fair, open-minded and General Kagan cited this opinion as a from the criteria for certiorari review respectful. Our citizens simply must ‘‘concise and persuasive formulation of to the Justices’ approach to oral argu- have confidence that a judge who the proper role of the judiciary in rela- ment. The constant interaction with weighs their legal claims does so with tion to the political branches of gov- the Supreme Court that comes with an even temperament. A judge must be ernment,’’ highlighting these passages: being the most-frequent litigator be- truly committed to providing a full and I strongly believe that my agreement or fore the Court also ensures an appre- fair day in court, while projecting a disagreement [with the law] has nothing to ciation for the rhythms and traditions sincere equanimity and respect for the do with the right of a majority to embody of the Court and its workload.’’ law. When these attributes are not their opinions in law. . . . The Constitution Prior to her 15 months as Solicitor clearly present in our judges, the pub- is . . . made for people of fundamentally dif- General, Ms. Kagan had relatively lit- lic justifiably begins to lose faith in fering views, and the accident of our finding tle experience as an active practi- the integrity of our courts. certain opinions natural and familiar, or tioner. The American Bar Association’s By all accounts, whether from con- novel, and even shocking, ought not to con- principle expectation for a Federal ap- servative former Solicitors General clude our judgment upon the question whether statutes embodying them conflict pellate nominee is ‘‘at least’’ 12 years Ken Starr and Ted Olson, and Assistant with the Constitution of the United States. experience actually practicing law, and Solicitor General Miguel Estrada, Gen- [Justices should not use their office] to pre- even now she continues to fall short of eral Kagan has a clear reputation for a vent the natural outcome of a dominant that. This is due in part to the fact sound judicial temperament. She pro- opinion, unless it can be said that a rational

VerDate Mar 15 2010 05:41 Dec 01, 2010 Jkt 079060 PO 00000 Frm 00064 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\AUGUST\S05AU0.REC S05AU0 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE August 5, 2010 CONGRESSIONAL RECORD — SENATE S6819 and fair man necessarily would admit that ern governance. That is what has given Jus- . . . regulations through the Heller prism the statute proposed would infringe funda- tice Jackson’s concurrence its staying power . . . because Heller didn’t exist at that time. mental principles as they have been under- and has made it the Court’s principal prece- . . . What President Clinton was trying to do stood by the traditions of our people and our dent on executive power. back in the 1990s and what I as his policy law. These three replies by General Kagan aide was trying to help him do, was to pro- Next, General Kagan selected a 1927 pose a set of regulations that had very are informative. Together they argue strong support in the law enforcement com- concurring opinion in Whitney v. Cali- for a limited judicial role, and dem- munity, that had actually bipartisan support fornia where the Court unanimously onstrate her command of the philo- here in Congress to keep guns out of the upheld a conviction for conduct threat- sophical underpinnings of core con- hands of criminals, to keep guns out of the ening to overthrow our government by stitutional doctrine and her insight hands of insane people. It was very much an unlawful means. Calling the concur- into the necessity of aligning those anti-crime set of proposals that I worked on rence an ‘‘inspiring example of a com- theories with the functional ‘‘complex- back then in the ’90s. mitment to protecting constitutional ities of modern governance.’’ They also A former White House colleague cor- rights’’ and a ‘‘stirring reminder of the convey an awareness of, and therefore roborated General Kagan’s testimony: value of freedom of speech in our soci- perhaps a capacity for, judicial states- ‘‘In all these cases, [President] Clinton ety, including its importance to demo- manship. As Justice Felix Frankfurter had already settled views on these cratic self-governance,’’ General Kagan once noted, ‘‘breadth of vision’’ and questions. Our job was to make sure cited her admiration for this para- ‘‘capacity to transcend one’s own expe- the government’s policy reflected what graph: rience’’ are often the defining qualities he wanted. He’d already made up his Those who won our independence believed that matter most in guiding a Justice’s mind on most of these contentious that the final end of the state was to make work on landmark cases. issues.’’ men free to develop their faculties, and that As regards her views on substantive As several members of the committee in its government the deliberative forces subjects of law, conservative attorneys during General Kagan’s hearing noted, should prevail over the arbitrary. They val- such as Charles Fried, Michael McCon- this same point—that a lawyer’s job is ued liberty both as an end and as a means. nell and Paul Clement have agreed that to represent the client’s views, and not They believed liberty to be the secret of hap- the lawyer’s own views—was also made piness and courage to be the secret of lib- General Kagan is in the mainstream. erty. They believed that freedom to think as For example, she has affirmed force- by Justices Roberts and Alito when you will and to speak as you think are fully that stare decisis is a critical they were asked during their confirma- means indispensable to the discovery and command for the Court. As she wrote tion hearings about advice they gave spread of political truth; that without free to the committee, that command re- while serving as executive branch at- speech and assembly discussion would be fu- quires a careful inquiry into whether torneys. Both nominees testified that tile; that with them, discussion affords ordi- the precedent has ‘‘been found unwork- their executive branch legal counsel re- narily adequate protection against the dis- able, whether subsequent legal develop- flected ways to advance their elected semination of noxious doctrine; that the client’s, not their own personal, legal greatest menace to freedom is an inert peo- ments have left the rule an anachro- ple; that public discussion is a political duty; nism, or whether premises of fact are interests and policy preferences. and that this should be a fundamental prin- so far different from those initially as- With respect to the fact that, more ciple of the American government. They rec- sumed as to render the rule irrelevant recently, General Kagan did not file a ognized the risks to which all human institu- or unjustifiable.’’ Moreover, she testi- brief for the United States in McDon- tions are subject. But they knew that order fied that: ald v. City of Chicago—McDonald did cannot be secured merely through fear of present an important question regard- The entire idea of precedent is that you punishment for its infraction; that it is haz- ing the interplay of the second and 14th ardous to discourage thought, hope and can think a decision is wrong. You can have decided it differently if you had been on the amendments, and I joined an amicus imagination; that fear breeds repression; brief in support of Mr. McDonald’s that repression breeds hate; that hate men- court when that decision was made. And aces stable government; that the path of nonetheless you are bound by that decision. claim to incorporate the second safety lies in the opportunity to discuss free- That’s—if the doctrine of precedent enabled amendment through the 14th amend- ly supposed grievances and proposed rem- you to overturn every decision that you ment, so that the protections of the edies; and that the fitting remedy for evil thought was wrong, it wouldn’t be much of a second amendment would apply not counsels is good ones. doctrine. . . . I think when the court looks just against Federal acts, but against as though it’s flipping around and changing Finally, General Kagan identified a sides just because the justices have changed, the acts of State and local govern- 1952 concurring opinion in Youngstown that’s bad for the credibility of the institu- ments as well. Here, several observa- Sheet & Tube Co. v. Sawyer. There, the tion and it’s bad for the system of law. tions are warranted. Court held that President Truman ex- General Kagan has also stated that First, McDonald presented only the ceeded his constitutional authority the Constitution protects a right of question of whether the second amend- when he ordered the Secretary of Com- privacy and that Roe v. Wade is not ment applied to State and local gov- merce to take possession of most of the only ‘‘settled law’’ but has been ‘‘dou- ernments, and not what the scope of Nation’s steel mills in the face of a bly settled’’ by Planned Parenthood v. the protections of the amendment is. labor strike during the Korean war. Re- Casey. Likewise, she has stated that As a result, McDonald, unlike Heller, specting a concurring opinion as the foreign law should not have preceden- presented no implications for the con- ‘‘definitive framework for evaluating tial weight in ‘‘any but a very, very stitutionality of Federal gun laws. Ac- the constitutionality of presidential narrow set of circumstances,’’ such as cordingly, the United States was not a action,’’ General Kagan observed that: limited cases involving ‘‘ambassadors’’ party in the case. Second, the issue of incorporation is Two aspects of the opinion are notable. or the ‘‘law of war.’’ And finally, she by its very nature one of primarily First, Justice [Robert] Jackson’s opinion is a has testified, as noted above, that State and local, and not Federal, con- classic formulation of the propositions that Youngstown Sheet & Tube remains the cern. This explains the amicus brief executive authority is not unlimited even in ‘‘determinative’’ governing standard in wartime and that the President is not above signed by 38 States in this case. This assessing Presidential wartime powers. the law. That is all the more remarkable also explains why the Solicitor Gen- With respect to the second amend- given that its author had served in the Exec- eral’s Office has a tradition of not ment, in my view, as a long-time, ar- utive Branch for much of his career, includ- weighing in on incorporation cases. ing as Solicitor General and Attorney Gen- dent supporter of second amendment General Kagan wrote to the committee eral. Second, Justice Jackson refused to rights, I have carefully examined Gen- in response to a supplemental question oversimplify constitutional analysis. . . . eral Kagan’s work as the President’s that: [H]is analysis depended in large measure on attorney a decade ago on a variety of an assessment of relevant historical prac- legislation affecting gun ownership It has long been the practice of the Office tices and political processes. That analysis of the Solicitor General not to file an amicus was resolutely legal in its nature; it was not rights. This is a fair question and, here, brief in cases concerning the application of a based on the Justice’s political preferences General Kagan testified as follows: constitutional provision to the states (so- or personal views. But the analysis took into The work that I did in the Clinton White called incorporation cases). Although incor- account the full complexities of constitu- House was all work . . . before Heller was de- poration cases raise important issues of con- tional interpretation in its relation to mod- cided, and so we really . . . did not consider stitutional interpretation, and may matter

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Incorporation cases therefore possession is ‘‘deeply rooted in this Na- do not fall within the category of cases in year-old precedent to strike down the which the Office of the Solicitor General tion’s history and traditions’’ is a electioneering communications provi- files amicus briefs: those where the federal ‘‘central part of the rationale’’ of Hell- sion of the Bipartisan Campaign Fi- government itself has a clear and specific in- er and, again, is ‘‘settled law.’’ nance Reform Act. terest in the resolution of the case. Moreover, she testified that she has There, the majority effectively con- This response is consistent with the ‘‘never believed that the president had verted on its own motion an as-applied reported statement of former Solicitor the power to prohibit [the sale of fire- challenge into a facial challenge General Erwin Griswold, who was arms] without legislative authoriza- through its order for re-argument. Ac- uniquely appointed by a Democratic tion. . . . In fact, that’s one [issue] that cording no deference to our 100,000-page President, President Johnson, and re- Heller and McDonald don’t effect, that factfinding record that took Congress tained by his Republican successor, the president didn’t have that power over 10 years to assemble, and further President Nixon. In 1970, General Gris- before and doesn’t have that power dismissing the commands of stare deci- wold reportedly wrote that incorpora- after.’’ She also testified that ‘‘the Sec- sis, the majority then rejected the rel- tion cases are rarely of direct interest ond Amendment question, as defined atively recent 1990 precedent of Austin to the Federal government because by Heller, was so peculiar to our own v. Michigan Chamber of Commerce and ‘‘fundamental considerations of fed- constitutional history and heritage the very recent 2003 precedent of eralism militate against executive in- that . . . foreign law didn’t have any McConnell v. F.E.C. Instead, the major- trusion’’ into issues of State and local relevance.’’ ity inflated the precedential value of Turning to another important issue, law. the majority’s very recent—only de- I also share the concern for how Gen- Further, although former Solicitor cided in 2006—and readily distinguish- General Paul Clement did appear in eral Kagan approached the issue of military recruiting at Harvard Law able F.E.C. v. Wisconsin Right to Life Heller for the United States, under the School. Under the Solomon amend- and eschewed arguments to decide the Bush administration, Heller was not an ment, universities like Harvard that case on narrower statutory grounds. incorporation case. Moreover, the receive Federal funding are required to Consequently, and in striking contrast broader question presented by Heller, permit military recruiters on campus. to claims of ‘‘judicial modesty,’’ the unlike McDonald, did implicate the Opposing the military’s don’t ask, majority then struck down the elec- basic scheme of Federal firearms regu- don’t tell policy, General Kagan was tioneering communications provision lations. one of several deans to relegate mili- of BCRA on the broadest of grounds. Yet even then, General Clement ar- Even granting that General Kagan gued in Heller for a somewhat narrower tary recruiters to a less preferred posi- tion by withholding Office of Career was an advocate in the case, I was ruling regarding personal rights. He pleased to hear her say in our personal also argued for a somewhat higher Services’ sponsorship. General Kagan also participated in a meeting that the Citizens’ majority level of judicial scrutiny of challenges lawsuit challenging the Solomon ‘‘did not respond in the right way. Con- to regulation of such rights in order to amendment as unconstitutional. Had gress had gone through an enormous ensure that the longstanding existing she prevailed in that suit, colleges and record and the Court had ruled only a Federal laws—like possession of ma- universities across the country could few years earlier. From where I sat, the chine guns, possession by convicted fel- have denied the military on-campus ac- Court was wrong.’’ ons, or possession on Federal prop- cess to students across the country. I also agree with Justice Stevens’ erty—that his office is required to de- Fortunately, the Supreme Court sum- dissent in Citizens that the activist fend were protected. A majority of the marily and unanimously rejected this ‘‘path’’ taken by the Citizens’’ major- Court ultimately respected and accept- challenge in 2006 in Rumsfeld v. ity will ‘‘do damage’’ to the Court ed General Clement’s concern in both F.A.I.R. itself. Citizens is not, of course, the Heller and McDonald. As Senator General Kagan continues to defend only recent case in which Justices and CORNYN noted at the hearing, Justice her decision as a difficult mediation of scholars from across the political spec- Alito wrote for the majority in McDon- competitive on-campus interests. But trum have viewed the Court’s majority ald that: the prevailing recognition here is that as overreaching. Indeed, opinions in We made it clear in Heller that our holding the Nation was fully engaged in two Montejo v. Louisiana, Gross v. FBL Fi- did not cast doubt on such longstanding reg- wars designed to advance national se- nancial Services, Ashcroft v. Iqbal, and ulatory measures as ‘prohibitions on the pos- curity, and so I continue to be troubled related commentaries have all ex- session of firearms by felons and the men- that General Kagan chose to relegate pressed the same concern. tally ill, . . . laws forbidding the carrying of Finally, I note that, if confirmed, firearms in sensitive places such as schools the military rather than her institu- and government buildings, or laws imposing tion’s financial or policy interests. General Kagan will become the fourth conditions and qualifications on the com- Reviewing the final consideration of female Justice ever to serve on the Su- mercial sale of arms.’ We repeat those assur- judicial philosophy, General Kagan has preme Court. She will follow Sandra ances here; . . . incorporation does not im- spoken directly to the important but Day O’Conner and join Justices Ruth peril every law regulating firearms. appropriately limited role that the Bader Ginsburg and Sonia Sotomayor. Perhaps most importantly, General Court plays in our constitutional General Kagan has already become the Kagan testified repeatedly that both scheme of government. She recognizes first woman to serve as Solicitor Gen- McDonald and Heller are settled law. that the Court is the ‘‘least account- eral of the United States, and the fact As regards McDonald, General Kagan able’’ of our governmental institutions remains that it does make a difference said, ‘‘I do think that . . . decision and that the Court is not ‘‘self-start- who women and girls see at the pin- [McDonald] [is] settled law; entitled to ing.’’ Citing Alexander Bickel and his nacles of government and industry. As all of the weight that any precedent of 1961 seminal article, General Kagan Justice Ginsburg observed at the time the Supreme Court has; [and] . . . can stated in our personal meeting that the of Justice Sotomayor’s nomination, only be overturned if there is strong ‘‘passive virtue’’ of the Court rests in ‘‘women belong in all places where de- evidence the ruling [among all of the what it does not do, and that the Court cisions are being made.’’ other stare decisis factors] is unwork- should work hard ‘‘not do more than is Ultimately, when the Framers ac- able.’’ called for’’ and ‘‘not go too far.’’ Like- corded us the special role of confirming On Heller, she said: ‘‘I think that wise, she said in her questionnaire that judicial nominees that we are exer- Heller is settled law and Heller has de- ‘‘I think it is a great deal better for the cising here today, having delegated the cided that the Second Amendment con- elected branches to take the lead in power of nomination to the Office of fers such an individual right to keep creating a more just society than for the President, and having recognized and bear arms. I have absolutely no courts to do so.’’ that elections to that office may affect reason to think that the court’s anal- We recently witnessed what happens the overall composition of the Court, ysis was incorrect in any way. I accept when the Court does not adhere to such the Framers expressly intended that

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Today, women comprise only since 1979 that prevented organizations for ‘‘special and strong reasons.’’ 19.2 percent of federal district court discriminating against selected indi- In reviewing the record of General judgeships, and 20 percent of federal ap- viduals from recruiting through the Kagan’s scholarship, the to, evidence of pellate judgeships, highlighting the school’s office of career services. her reputation, and her responses to need for increased gender representa- Kagan’s enforcement of this policy was the committee and other Members tion on our Nation’s highest courts. So- consistent with her predecessors, Dean throughout this process, I find in that licitor Kagan’s confirmation is only a Robert Clark and Harvard President General Kagan has a very capable in- step towards reducing this gender dis- Larry Summers. However, Kagan en- tellect and a deep respect for the rule parity in our Nation’s judiciary. sured that military recruiters still had of law. She has a command of the im- I followed closely Solicitor Kagan’s access to students. Kagan noted, portant but limited role of the courts, hearings, and I am impressed by Solic- ‘‘[M]ilitary recruiters had access to and a demonstrated commitment to itor Kagan’s commitment to respect Harvard students every single day I stability in the law. It is therefore my the rule of law. The hearings for Solic- was dean . . . I’m confident that the conclusion that Solicitor General itor Kagan, who testified for more than military had access to our students and Elena Kagan is qualified to serve as the 17 hours and answered over 540 ques- our students had access to the military next Associate Justice of the Supreme tions, were thorough and fair. In her throughout my entire deanship.’’ Solic- Court. opening statement, Solicitor Kagan ob- itor Kagan’s work to ensure student ac- Ms. CANTWELL. Mr. President, it is served that, ‘‘the Supreme Court’s role cess demonstrates her support of our with great pride that I express my in our society is to act as a safeguard military and her encouragement of the strong support for the nomination of to the rule of law by maintaining a brightest students’ involvement in our Solicitor General Elena Kagan to be commitment to impartiality, principle, Armed Services. Solicitor’s Kagan’s widespread sup- the next Associate Justice of the and restraint; and the role of a Su- port is a testament to her impact on United States Supreme Court. A trail- preme Court justice is to approach not only her colleagues and peers, but blazer in many ways, Solicitor Kagan each case with even-handedness and also upon a large number of those in was the first female to serve as Solic- fair-mindedness, to ensure that every- the legal profession. The American Bar itor General of the United States and one who comes before the Court re- Association, after conducting an inves- the first female Dean of Harvard Law ceives a fair shake.’’ tigation over several weeks that in- Solicitor Kagan also expressed her School, one of the most prestigious cluded peer reviews, concluded that So- admiration for Justice Thurgood Mar- legal educational institutions in our licitor Kagan merited its highest rat- shal; under whom she clerked, for his Nation. Her nomination as Solicitor ing of unanimously ‘‘well qualified.’’ view of the Supreme Court as a means General garnered the bipartisan sup- To merit the Committee’s rating of port of every Solicitor General who of access to justice for those left with- ‘‘well qualified,’’ a Supreme Court served from 1985 to 2009, including out redress after unfair treatment. Her nominee must be a preeminent member Charles Fried, Ken Starr, Drew Days, expressed judicial philosophy of impar- of the legal profession, have out- Walter Dellinger, Seth Waxman, Ted tiality and fairness, to individuals of standing legal ability and exceptional Olson, Paul Clement, and Greg Garre, a all classes, income levels, and inter- breadth of experience, and meet the testament to her ability to build ests, is a critical component to the very highest standards of integrity, bridges across partisan lines and her fi- High Court in a climate where we see professional competence, and judicial delity to law above politics. increasing judicial activeness and par- temperament. Solicitor Kagan brings a wealth of tiality to special interests. In addition, Solicitor Kagan has re- historic legal experience to the posi- Solicitor Kagan’s experiences as a ceived support from Democrats and Re- tion of Associate Justice, including scholar and policy advisor unquestion- publicans and a range of civil rights, serving as law clerk to Justice ably qualify her for a position on the non-profit, and advocacy organizations, Thurgood Marshall, the first African- Supreme Court. I find it disingenuous including the National Women’s Law American to serve on the Supreme that several of my conservative col- Center, the National Partnership for Court, working as an associate at the leagues have attacked Solicitor Women and Families, Earthjustice, the law firm of Williams & Connolly, Kagan’s lack of judicial experience. American Bar Association, the Alli- teaching as a law professor at the Uni- The last two of the previous four chief ance for Justice, the National Associa- versity of Chicago and Harvard Univer- justices of the Supreme Court, William tion for the Advancement of Colored sity, and acting as policy counsel to Rehnquist and Earl Warren, had no ju- People (NAACP) Legal Defense and President Clinton and special counsel dicial experience when first nominated Education Fund, the National Associa- to the Senate Judiciary Committee. In to the Court. Nor did, Felix Frank- tion of Women Judges, the Hispanic these capacities she handled legal and furter, Louis Brandeis, and John Mar- Bar Association, the Service Employ- policy issues ranging from public shall, known as the ‘‘Great Chief Jus- ees International Union (SEIU), and health, to education, to war crimes, to tice.’’ Over one-third of the past 111 Su- the Leadership Conference on Civil and campaign finance and welfare. preme Court justices had no judicial Human Rights (LCCR). Solicitor Kagan Solicitor Kagan’s experience with experience when they were first nomi- is also endorsed by her colleagues in different branches of government nated. Rather than being a product of academia, and a group of over sixty- equips her with a unique perspective on the judicial monastery, Solicitor nine law school deans across the coun- the law and the challenges the Court Kagan brings a real world perspective try expressed their written support for will face in the coming years. Her con- on the role of a justice, with a view to her nomination to the Senate Judici- firmation honors the legacy of Justice the practical contexts and implications ary Committee in a June 15, 2010 letter. John Paul Stevens, the outgoing Jus- of the Court’s decisions. Solicitor Her supporters also include her former tice, who was well known for his serv- Kagan’s two decades of experience students, including one, a former law ice of dignity and intellect, without re- working in every branch of government clerk to Justice Antonin Scalia, who gard for partisan divides. exceptionally qualify her as an Asso- called Solicitor Kagan, ‘‘a person of ut- If we confirm her—and I am con- ciate Justice, and as one of the top most integrity, extraordinary legal tal- fident we will—Solicitor Kagan will be legal thinkers in the country. ent and relentless generosity.’’ only the fourth woman in history to My conservative colleagues have also Solicitor Kagan’s intellectual apti- serve on the Supreme Court, and will criticized Solicitor Kagan’s enforce- tude and commitment to justice was be the third woman to sit on the cur- ment of Harvard Law School’s anti-dis- demonstrated early in her life. She was rent Court, the highest number of fe- crimination policy. Solicitor Kagan did born in New York City, NY, the daugh- male justices to serve at one time. not assert her own personal agenda and ter of a school teacher and a public

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These voices across the polit- LEAHY, Leader MCCONNELL, and Sen- associate with Williams & Connolly, ical spectrum recognize Elena Kagan’s ator REID of Nevada; that upon the use and then counsel to President Clinton, years of practical, pragmatic experi- of the allotted hour, the Senate pro- as Associate Counsel, Deputy Assistant ence, and value, in the words of Pro- ceed to vote on confirmation of the to the President for Domestic Policy, fessor Michael McConnell, director of nomination; that upon confirmation, and Deputy Director for the Domestic the Constitutional Law Center at Stan- the motion to reconsider be considered Policy Counsel. She led the Clinton ad- ford Law School, her ‘‘fidelity to legal made and laid on the table, the Presi- ministration’s inter-agency effort to principle even when it means crossing dent be immediately notified of Sen- analyze all legal and regulatory as- her political and ideological allies.’’ ate’s action, and the Senate then re- pects of the Attorney General’s to- Despite her abilities and her tremen- sume legislative session. Further, I ask bacco settlement and then participated dous legal career, Solicitor General that when Members cast a vote on the actively in the development and con- Kagan continues to be the subject of nomination, they do so from their gressional consideration of tobacco leg- baseless attacks. For instance, the Na- seats. islation. She also handled legislative tional Rifle Association, NRA, has The PRESIDING OFFICER. Is there issues involving constitutional issues, taken out full page advertisements in objection? including separation of powers, govern- multiple newspapers and has aired na- Mr. REID. Will the Chair withhold mental privileges, freedom of expres- tional television commercials claiming please, Mr. President. You have heard my request. What is sion, and church-state relations. Elena Kagan is unfit for the Supreme the ruling of the Chair? As Dean of Harvard Law School, she Court because of her supposed opposi- The PRESIDING OFFICER. Without joined other deans in opposing an tion to the second amendment rights of objection, it is so ordered. amendment to strip the courts of the Americans. The NRA’s charges are un- Mr. REID. Mr. President, at 3:30 power to review detention practices, founded and are refuted by the nomi- today we will vote on the nomination treatment and adjudications of guilt nee’s own words during her confirma- of Elena Kagan to be an Associate Jus- and punishment for detainees at Guan- tion hearing before the Senate Judici- tice on the Supreme Court. tanamo Bay, Cuba. This reflects a fair ary Committee. The PRESIDING OFFICER. The Sen- view, with an eye to checks and bal- For example, in regard to the Su- ator from Alabama. ances on different branches of govern- preme Court’s 2008 Heller decision, Mr. SESSIONS. Mr. President, in the ment. which ruled that the second amend- midst of President Johnson’s ‘‘Great In her first case as Solicitor General, ment protects an individual’s right to Society,’’ Ronald Reagan explained Solicitor Kagan argued before the Su- possess a firearm for private self-de- that our Nation had arrived at a cross- preme Court on behalf of the govern- fense purposes in a Federal enclave, roads, at a time for choosing. ment in the Citizens United v. FEC and the Supreme Court’s recent The choice, Reagan explained, was case. As Solicitor Kagan notes, how- McDonald decision, which applied the ‘‘whether we believe in our capacity for ever, her role as Solicitor General was Heller holding to the States, the NRA self-government or whether we aban- to argue on behalf of the country, not has said that Solicitor General Kagan don the American Revolution and con- to advance her personal beliefs. has left unanswered ‘‘very serious ques- fess that a little intellectual elite in a In my meeting with her, Solicitor tions of whether she would vote to far-distant capital can plan our lives Kagan confirmed her commitment to overturn Heller and McDonald.’’ Per- for us better than we can plan it for protecting the right to privacy en- haps the NRA lobbyists were not ourselves.’’ shrined in our Constitution. I believe watching her confirmation hearing Forty years later, our Nation once she will preserve that right. when she replied to a question from again finds itself at a crossroads. Gov- Solicitor Kagan is uniquely qualified Senator TOM COBURN saying, ‘‘I very ernment is getting larger and larger. to serve as Associate Justice because much appreciate how deeply important Spending is out of control, and a little she not only possesses an impressive the right to bear arms is to millions intellectual elite, in a far distant cap- intellectual capacity and commitment and millions of Americans. And I ac- ital, is trying harder than ever to plan to fairness, but also because she is cept Heller which made clear that the the lives of the American people. Even committed equal justice. As she re- second amendment conferred that right basic choices about how we care for our marked in her opening statement, upon individuals, and not simply col- own health are now made by career bu- ‘‘Equal Justice under the Law. It lectively.’’ In addition, in response to a reaucrats whose names Americans will means that everyone who comes before related question from Senator CHARLES never hear and whose faces they will the Court—regardless of wealth or GRASSLEY, Solicitor General Kagan never see. power or station—receives the same said ‘‘those decisions are settled law Our Nation has a choice to make. We process and the same protections . . .’’ . . . I will follow stare decisis with re- either restore or relinquish our great Solicitor Kagan demonstrates a read- spect to Heller and McDonald as I heritage of limited constitutional gov- iness to serve on our Nation’s Highest would with any case.’’ ernment. Part of that choice will be Court and I am confident that she will It seems pretty clear, contrary to the made here today. Part of that choice make a fine justice who will not only NRA’s claims, that Solicitor Kagan has will be made as we consider the nomi- uphold the Constitution and legal answered questions concerning her po- nation of Elena Kagan to the Supreme precedent of the country, but continue sition on the second amendment rights Court. In recent years, the progressive to preserve one of the most treasured of Americans, and she will defend those wing of the Supreme Court has offered tenets of our legal system, equal access rights. opinions that would have denied Amer- to justice for all Americans. I yield the floor and suggest the ab- icans their right to keep and bear Mr. LEVIN. Mr. President, earlier sence of a quorum. arms, and severely diminish the right this week I spoke on the Senate floor, The PRESIDING OFFICER. The to free speech during election time. calling for the confirmation of Solic- clerk will call the roll. These same progressive Justices suc- itor General Elena Kagan to the posi- The legislative clerk proceeded to ceeded only a short time ago in ruling tion of Associate Justice of the Su- call the roll. that a citizen’s property could be preme Court. I added my voice to a Mr. REID. Mr. President, I ask unan- seized by the State for private commer- chorus of bipartisan praise for her imous consent that the order for the cial development. These Justices are qualifications and abilities to be a Su- quorum call be rescinded. ignoring the text of our Constitution, preme Court Justice, joining sup- The PRESIDING OFFICER. Without the plain rights guaranteed by our Con- porters such as Miguel Estrada, Assist- objection, it is so ordered. stitution, in order to advance what

VerDate Mar 15 2010 05:41 Dec 01, 2010 Jkt 079060 PO 00000 Frm 00068 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\AUGUST\S05AU0.REC S05AU0 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE August 5, 2010 CONGRESSIONAL RECORD — SENATE S6823 they think are better ideas, their vi- unrestricted, equal access on campuses so unique. The whole goal of our trials sion, their political agendas, frankly. for military recruiters. Ms. Kagan is to find the truth. These concerns This progressive, activist judicial knew what the law said, and as she her- were addressed during the hearing. Ms. philosophy strikes at the heart of our self admitted, knew that it was in force Kagan was given every opportunity to democracy and is a direct threat to our every single day she was dean. But she respond. But she opted, I thought, for liberty. Judges are lifetime appointed. put her own views, her political ideas, political spin at the expense of rigorous They are not accountable to the peo- her ideologies above the law and above honesty and accuracy. In so doing, she ple. President Obama himself has said the best interests of our soldiers, strip- only further demonstrated she lacked that judges must shed their neutral ping the military of their official ac- the qualities necessary to sit on the constitutional role and impose upon cess availability on campus. Court. Other Senators have the same the nation ‘‘their broader vision of Ms. Kagan justified this conduct by impression of that testimony. what America should be.’’ That is how saying she was objecting to don’t ask, Some have said that Senators are op- he said he would pick judges, and this don’t tell. That statute, however, was posing this nomination for partisan is certainly the kind of judge President passed by Congress and implemented reasons, that her qualifications are not Obama believes he has found in Ms. by President Clinton, her former boss. in question. But what qualification is Kagan, someone who shares his pro- But instead of complaining to the poli- more essential for the Supreme Court gressive, elitist vision and is willing to ticians who made the rule, to those of than impartial fidelity to the law? This advance it from the bench. us in Congress who were involved in is not an ideological litmus test but a Indeed, throughout Ms. Kagan’s ca- passing it and maintaining it, working core bipartisan standard to which any reer, she has been more deeply involved within the democratic system, Ms. nominee of any party ought to be held. in politics than law, and has frequently Kagan took it upon herself to defy the Senators can and will disagree on the put her politics above law. She has law and to demean the people who were question of how much deference a never been a judge, never argued even a merely following the law, our noble President is due in his nomination. But case before a jury. She has practiced men and women who serve our country. surely that deference cannot extend so law for 3 years. She has less real legal Perhaps some of those on that cam- far as to include a nominee who is un- experience than any nominee in the pus recruiting had just come off the able to serve under the Constitution as last half century. battlefield, having served their coun- they take an oath to do. The experience Ms. Kagan does have, try, placing their lives at risk. For The American people will not easily however, is mostly that of a political that there can be no justification. forgive the Senate if we confirm Ms. lawyer and a policy advocate, and After Harvard, Ms. Kagan assumed Kagan to the Supreme Court. They will whenever her political views have the post of Solicitor General of the not forgive the Senate if we further ex- clashed with her legal obligations, her United States. In that job it is her pose our Constitution to revision and vision of what America should be and sworn duty to defend all Federal laws, rewrite by judicial fiat, to advance not her duty have too often won the including those she may personally op- what President Obama says is a broad- day. pose. These are the laws of Congress er vision of what America should be. As a Supreme Court clerk she pur- which the Solicitor General must de- That is the Congressional role, not the sued a progressive agenda without re- fend. As every good lawyer knows, her judicial role, to figure out what the vi- sion and the policy of this country gard to the Constitution’s text or his- job is to represent her clients, and the should be. tory. She even wrote she was not sym- client of the Solicitor General is the Now more than ever we need this pathetic to an American’s constitu- United States of America. Court to be an impartial defender of tional right to keep and bear arms. As Did she fulfill that duty? Did she our constitutional liberty. As Vice a top aide to President Clinton she was faithfully represent her client? No, she President BIDEN’s own chief of staff closely involved in efforts to restrict did not. When the liberal Ninth Circuit and close friend of Ms. Kagan emphati- private gun ownership, including a plan issued a deeply flawed ruling against cally said, ‘‘Ms. Kagan is clearly a to block firearm importation into our don’t ask, don’t tell, the law Ms. Kagan legal progressive.’’ If confirmed, I fear country that one Clinton official ad- had so strongly opposed at Harvard, she will continue putting her politics mitted was ‘‘taking the law and bend- she did not appeal the ruling, despite above the law, as she has so often done ing it as far as we can.’’ great chances of success on appeal to before. So I invited those who sup- She also worked aggressively to en- the Supreme Court. Instead, she did ex- ported this nomination to refute the sure the wide availability of partial- actly what the ACLU, the group who record and the analysis I have stated birth abortion. Instead of providing was leading the fight in representing over the several past weeks, but I do President Clinton with sound legal ad- the individual in that lawsuit, who op- not think one error has been raised and vice based on the best medical evi- posed the statute and wanted it strick- identified by Ms. Kagan’s supporters in dence, she pushed the President away en, she did what they desired and let what I have said. from his moderate position, and away the ruling stand, and missed the oppor- So we are left with the same concern, from his willingness to reach a com- tunity to get a clear appeal. This was a that Ms. Kagan would ally herself not promise on this issue. She even helped test of Ms. Kagan’s legal character, and with the constitutional liberties of all revise a medical statement to imply a she failed that test. I studied the case Americans but with the big govern- medical need for the gruesome partial- closely. I want to be fair to her about ment agenda of the President who birth abortion procedure that did not that. nominated her. In fact, at the hearing, exist, when the expert panel had indeed The only explanation for her not ap- Ms. Kagan was unable to identify any said it was never an appropriate proce- pealing to the Supreme Court was that limits on the government’s power to dure. she did not want them to uphold the control America’s economic decisions. Next, as dean of Harvard Law, Ms. statute to win a victory for the United What Ms. Kagan perhaps fails to realize Kagan would once again sacrifice legal States. In short, she did not fulfill her is that the people should control their principle for political gain for advance- duty. Her duty. Is that a word that is government, not the other way around. ment of an agenda she believed in. Ms. out of fashion today? And she did not That is why no Supreme Court Jus- Kagan inherited a policy of equal and live up to her explicit, sworn promise tice should simply rubberstamp any po- unfettered access for military recruit- made to this Senate, to vigorously de- litical agenda of a President or Con- ers on campus. That was the policy. fend that very statute, when she was gress, nor should any Senator. Our lib- But she reversed this policy, kicking confirmed to be Solicitor General. erties are far more precious than any the military out of the campus recruit- Given this record, it is not surprising partisan allegiance. ment office as our troops at that very that Ms. Kagan’s judicial heroes are ac- After the Constitution was drafted, time were risking their lives overseas. tivists who reject and repudiate some- Benjamin Franklin was asked what She did this in clear, knowing violation times even the very idea of objectivity. kind of government had been created. of Federal law, the Solomon amend- But it is objectivity, the search for Franklin replied: A republic, if you can ment. The Solomon amendment, passed what is right and true, that makes our keep it. Again, the choice is ours. Ei- by this Congress four times, requires system of justice so extraordinary and ther we embrace our great, magnificent

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Either we move forward more se- riences, combined with her work as an of judicial service to focus on a few cure in our freedom or we fall back to advisor to President Clinton, give her phrases taken out of context from her the old bankrupt idea of big govern- background in all three branches of our speeches reversed their course this ment—an idea that has failed at every government. She also taught law at year to proclaim that an extensive ju- place, every time it has been tried. two of the Nation’s most respected law dicial record is imperative. Standards Let’s take a step today in the right schools. In the decade since the Repub- shift almost every time. They then direction. Let’s listen to the American lican Senate majority pocket-filibus- faulted Solicitor General Kagan for not people and strengthen our commitment tered her nomination to the DC Cir- having been a judge, while ignoring the to constitutional values. It is that cuit—remember, when people say she fact that it was Senate Republicans commitment that impels me to vote does not have judicial experience, of who pocket-filibustered her judicial against this nomination and why I urge course, Republicans did block her from nomination more than 10 years ago. my colleagues in both parties to do the going on the court—Elena Kagan be- Senators can make their own judg- same. came the first woman dean of Harvard ments, and they have. I ask of them I see the chairman of the committee, Law School and then the first woman only two things: Fairly consider Solic- Senator LEAHY. He and I don’t agree on Solicitor General of the United States, itor General Kagan’s testimony and ad- this nomination, but he is a proven often referred to as the 10th Justice. here to the standards of fairness and professional chairman. He has gone The 100 of us who serve in the U.S. objectivity that you are demanding of through a host of these nominations. Senate stand in the shoes of more than her as a Justice. History will judge He is tough, but he is fair. He let us 300 million Americans as we discharge whether Senators have fairly consid- have our say. I thank the chairman for this constitutional duty to consider ered the nomination of Solicitor Gen- the privilege of working with him on nominations to our Nation’s Federal eral Kagan. I commend those Senators this important constitutional effort. courts. We will conclude our consider- who have shown the independence to The PRESIDING OFFICER (Mr. ation of this nomination after 12 join the bipartisan confirmation of this FRANKEN). The Senator from Vermont weeks. If we can do that for a Supreme nomination. is recognized. Court nomination, we ought to be able I also defend the right of every Sen- Mr. LEAHY. Mr. President, I thank to consider the other judicial nomina- ator to vote as he or she chooses. I un- the Senator from Alabama for his kind tions that have been stalled for months derstand that some statements made in words. We both set out with the goal of after being favorably reported by the opposition to this nomination were making sure the United States had a Judiciary Committee. seen as insulting to the nominee and to chance to hear this nomination, to This is the 15th time since I have others. I disagree with the many infer- hear the debate on it, and to have Sen- been in the Senate that I have been ences, conclusions and judgments ex- ators speak. We both decided before the able to consider a Supreme Court nom- pressed in opposition, but I do not debate that would happen, and it has. I ination. I have applied the same stand- think Senators intended their remarks thank the Senator from Alabama. ards to this nomination as I have to to be disparaging. We are about to conclude debate on the ones that preceded it. I looked to Five years ago, I followed the Demo- the nomination of Elena Kagan to be see whether Solicitor General Kagan cratic leader’s statement in opposition Associate Justice of the U.S. Supreme would fairly apply the law and use to the nomination of John Roberts Court. This is the time when the 100 of common sense. That is the same stand- with my statement in favor of that us stand in the footsteps of 300 million ard I used on the first Supreme Court nomination. That was my judgment Americans and make the decision Justice I voted on, a man from Chi- based on the record and his testimony, whether she will be confirmed to a life- cago, Justice John Paul Stevens, nomi- including his pronouncements on judi- time appointment. I predict right now nated by a Republican President. I cial restraint, deference to Congress, she will be confirmed and I look for- proudly voted for him. For Solicitor and respect for precedent. At the time, ward to her bipartisan confirmation. General Kagan, I looked to see wheth- Senators on the Democratic side of the She has been nominated to succeed er, as a Justice, she would appreciate aisle—a number of them—disagreed Justice John Paul Stevens, someone the proper role of the courts in our de- with me, including one Senator who who served with integrity for so many mocracy. Would she be the kind of disagreed with me but, nevertheless, years, a man I consider a friend. Her independent Justice who would keep came to the floor to defend my posi- qualifications, intelligence, tempera- faith with each of the words inscribed tion. That Senator was the then-junior ment, and judgment will make her a in Vermont marble over the front doors Senator from Illinois. Of course, he worthy successor to Justice John Paul to the Supreme Court: ‘‘Equal justice now serves as President of the United Stevens. under law.’’ My answer to these ques- States. As I told President Obama the When she is appointed by the Presi- tions, based on her record and testi- other day, his defense of me meant a dent after we confirm her, three women mony, is a resounding yes. lot then, and 5 years later, it still does. will serve together on the Supreme Solicitor General Kagan dem- In the course of our consideration of Court of the United States for the first onstrated an impressive knowledge of this nomination, I have spoken several time in our Nation’s history, three the law and fidelity to it. She spoke of times about the key role real world women on the nine-member Supreme judicial restraint and respect for our judging and judicial independence have Court. As I said 51⁄2 weeks ago, when democratic institutions, her commit- played in furthering the Constitution’s the Judiciary Committee began Solic- ment to the Constitution and the rule purpose of forming a more perfect itor General Kagan’s confirmation of law. She made clear that she will union. It is essential that judicial hearing, we are a better country for base her approach to deciding cases on nominees understand that, as judges, the fact that the path of excellence the law and the Constitution, not poli- they are not members of any adminis- Elena Kagan has taken in her career is tics or an ideological agenda. So today tration. I believe Solicitor General one now open for both men and women. I will cast my vote for Elena Kagan’s Kagan has that understanding. Courts I look forward to the day when I see confirmation. are not subsidiaries of any political many more women on that Court. I observed at the outset of this con- party or interest group, and our judges Solicitor General Kagan’s legal firmation process that there was no should not be partisans. That is why qualifications are unassailable. She one President Obama could nominate the Supreme Court’s intervention in earned her place at the top of the legal who would not be opposed by some. the 2000 Presidential election in Bush profession. No one gave it to her; she Some Senators announced their opposi- v. Gore was so jarring and why the re- earned it. As a student, she excelled at tion to Solicitor General Kagan’s nom- cent decision by five conservative ac- Princeton, Oxford and Harvard Law ination even before a hearing took tivist Justices in Citizens United to

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[T]he common and continual mischiefs of Brian Benczkowski, on whom I have re- It is also essential that judges and the spirit of party are sufficient to make it lied repeatedly through this process, Justices understand how the law af- the interest and duty of a wise people to dis- for his good judgment and wise coun- fects Americans each and every day. I courage and restrain it. sel, his integrity and experience as we expect Elena Kagan learned early on in It serves always to distract the Public have dealt with this difficult challenge. Councils, and enfeeble the Public Adminis- I would also note my chief counsel for her legal career, when she clerked for tration. It agitates the Community with ill- Justice Marshall, that Justices ought founded jealousies and public alarms; kindles nominations, Danielle Cutrona, who to understand how their decisions af- the animosity of one part against another, has also worked exceedingly hard, as fect real Americans. In the hard cases foments occasionally riot and insurrection. well as my deputy staff director, Matt that come before the Supreme Court, That was George Washington, a long Miner. I would like to acknowledge and in the real world, we want and need time ago. But today our Nation faces thank the other hard-working and tal- Justices who have the good sense to ap- many challenges. It is a time when we ented lawyers on my permanent staff preciate the real world ramifications of should be pulling together and working who worked on this nomination, in- their decisions. The American people together. Instead, we have seen too cluding William Smith, Ted Lehman, live in the real world of great chal- much obstruction, negativity, and de- Bill Hall, Mark Patton, John Ellis, and lenges. The Supreme Court needs to votion to the failure of the other party function in that real world. Kimberly Kilpatrick. instead of the success of the country. I would also like to extend my appre- It took a Supreme Court that, in 1954, The nomination of Solicitor General understood the real world to conclude ciation to the talented lawyers who Elena Kagan is a matter on which I ex- joined my staff as Special Counsels in Brown v. Board of Education that pect the President had hoped we would the seemingly fair sounding doctrine of specifically to work on this nomina- come together. Her nomination really tion, including Ralph Johnson, Jason separate but equal was in reality a is one worthy of broad bipartisan sup- straitjacket of inequality and incon- Tompkins, and Susanna Dokupil. And I port. would be remiss if I did not mention sistent with the constitutional guar- With Elena Kagan’s confirmation, the efforts of our Law Clerks, two of antee of equality. It took a Supreme the Supreme Court will better reflect whom dedicated their time while Court 75 years ago that understood the the diversity that has made our coun- studying for the bar exam, including real world and the Great Depression to try so great. We will write another Amanda Lavis, Ed Liva, and Taylor- reject conservative judicial activism to chapter in the history of our Nation’s Lee Wickersham. accept the constitutional authority of highest Court. And we will take an- I would also like to acknowledge our Congress to outlaw child labor, to other step forward in fulfilling the dedicated support staff: Lauren guarantee a minimum wage, and to es- hopes and dreams of the trailblazers Pastarnack, Sarah Thompson, Andrew tablish a social safety net for all Amer- who set the path for Elena Kagan to Bennion, Allison Busbee, Kate Laborde, icans. Through Social Security, Medi- follow. and Ivy Williams. care and Medicaid, Congress ensured I will proudly vote for her confirma- Finally, I cannot overstate the im- that growing old no longer means tion. portant work done by our press team. growing poor and that being older or Mr. President, I suggest the absence My Communications Director Stephen poor no longer means being without of a quorum. Boyd, Press Secretaries Sarah Haley medical care. That progress continues The PRESIDING OFFICER. The and Stephen Miller, and Press Assist- today with our efforts to pass laws to clerk will call the roll. ant Andrew Logan have worked tire- ensure protection from natural and The assistant legislative clerk pro- lessly throughout this process. manmade disasters, to encourage clean ceeded to call the roll. All of these individuals shouldered air and water, to provide health care Mr. SESSIONS. Mr. President, I ask the brunt of this enormous task, work- for all Americans, to ensure safe food unanimous consent that the order for ing late hours and through weekends and drugs, to protect equal rights, to the quorum call be rescinded. and holidays. They deserve our rec- enforce safe workplaces and provide a The PRESIDING OFFICER. Without ognition for their hard work, profes- safety net for seniors. objection, it is so ordered. sionalism, and dedication to public Vermont did not vote to join the Mr. SESSIONS. Mr. President, I service. Union until the year the Bill of Rights would like to express my appreciation I would also like to thank the other was ratified. Those of us from the to my staff who worked tirelessly dur- talented lawyers on my staff who, Green Mountain State are protective of ing these past few months on this nom- among others I have just mentioned, our fundamental liberties. Vermonters ination. They spent many long hours handled the regular legislative busi- understand the importance the Con- combing through and distilling infor- ness that came before the Judiciary stitution, including the Bill of Rights mation in hundreds of thousands of Committee during this process: Joe and the subsequent constitutional documents provided by Solicitor Gen- Matal, Bradley Hayes, and Sam Ramer. amendments have had in expanding in- eral Kagan, the Clinton Library and And let me express my gratitude to dividual liberties over the last 220 the Pentagon. On a short timeline, my the Republican Leader and his staff, years. I believe Solicitor General staff worked around the clock to pre- specifically John Abegg, Josh Holmes, Kagan shares this understanding. As pare for the hearing before the Judici- and Webber Steinhoff; along with Re- she said in her opening statement at ary Committee, which occurred merely publican Policy Committee Counsel the hearing: 49 days after President Obama an- Gregg Nunziata who provided invalu- What the rule of law does is nothing less nounced Solicitor General Kagan’s able assistance to my staff. than to secure for each of us what our Con- nomination to the Supreme Court. Be- I’d also like to express my thanks to stitution calls ‘‘the blessings of liberty’’— cause of their hard work and dedica- Chairman LEAHY for his work on this those rights and freedoms, that promise of tion, our members were well-prepared nomination. We didn’t always agree on equality, that have defined this nation since and well-informed, which allowed us to everything, but he was respectful of its founding. conduct a fair and thorough hearing. Republicans’ rights during this process All of us are better for our historic Mr. President, I would like to thank and he conducted a fair and thorough progress to greater freedom, equality, my staff and Senator LEAHY’s staff, the hearing. He would not have been able and security. Judiciary Committee staff, for their to do that without the help of his staff, Every February, the Senate hears fine work during this nomination proc- including his Staff Director and Chief President George Washington’s Fare- ess. It has gone on for a number of Counsel Bruce Cohen and his Chief well Address. It is usually read by the weeks, and it has been very stressful, Nominations Counsel Jeremy Paris. Senate’s most junior Member. In that with a lot of late nights, and people Finally, I would like to thank the Ju- pronouncement by our first President, really have worked hard. I believe that diciary Committee’s Chief Clerk,

VerDate Mar 15 2010 05:41 Dec 01, 2010 Jkt 079060 PO 00000 Frm 00071 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\AUGUST\S05AU0.REC S05AU0 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S6826 CONGRESSIONAL RECORD — SENATE August 5, 2010 Roslyne Turner and her assistant, Erin relied upon it again as recently as this year ficult for unions to use money from compul- O’Neill. in Citizens United v. Federal Election Com- sory union dues in political campaigns’’ Every one of these talented staff mission. would simply protect a constitutional and members contributed to this process, However, in 1996, when she was Associate statutory right of workers recognized by the Counsel to President Clinton, Ms. Kagan re- Court in the Abood line of cases and in Beck. and their dedication and hard work jected this long, unbroken line of Supreme Ms. Kagan nonetheless subsequently rec- helped us conduct a fair and thorough Court precedent that protects the First- ommended that President Clinton oppose hearing. I extend my heartfelt thanks Amendment right of public employees—and any legislation protecting the right of work- to each of them. We could not have ful- of Americans generally—not to be compelled ers not to be forced to subsidize union poli- filled our Constitutional duty of Advice by government to subsidize political activi- tics, despite the First Amendment’s guar- and Consent without them. ties of private, voluntary associations. antee of that basic worker freedom of speech Mr. President, there are in the hear- In an e-mail message on October 31, 1996, to and association. Paul J. Weinstein, Jr., Chief of Staff of the On February 12, 1997, Kathleen Wallman, ing nine letters in opposition to the White House Domestic Policy Council, Ms. then Deputy Assistant to the President for nomination of Elena Kagan to be Asso- Kagan said (emphasis added): Economic Policy, circulated an 11:30 a.m. ciate Justice of the Supreme Court It is unfortunately true that almost any draft memorandum for the President on pos- from Gonzalo Vergara, Lt. Col., USAF meaningful campaign finance reform pro- sible policy announcements of labor issues (Ret); the Judicial Action Group; Na- posal raises constitutional issues. This is a that the Vice President could make at a tional Right to Life Committee; Mili- result of the Supreme Court’s view—which I meeting of the AFL–CIO’s Executive Com- tary Families United; the Liberty believe to be mistaken in many cases—that mittee later that month. The draft indicates Counsel; The Ethics & Religious Lib- money is speech and that attempts to limit that Ms. Kagan, by then Deputy Assistant to the influence of money on our political sys- the President for Domestic Policy, was writ- erty Commission of the Southern Bap- tem therefore raise First Amendment prob- ing two sections of the memo that were not tist Convention; the American Associa- lems . . . I also think the Court should reex- included in the draft. One of those sections tion of Christian Schools; the Center amine its premise that the freedom of speech that Ms. Kagan ‘‘agreed to draft’’ concerned for Military Readiness; and the Na- guaranteed by the First Amendment entails the Administration’s ‘‘[p]osition on Beck tional Rifle Association of America. a right to throw money at the political sys- legislation aimed at limiting the use of I ask unanimous consent to have tem. union dues in political activity.’’ printed in the RECORD four letters from In her Senate Judiciary Committee testi- Later that same day, Ms. Kagan e-mailed the National Right to Work Com- mony on June 29, 2010, Ms. Kagan claimed in Ms. Wallman her recommendation about answer to a question from Senator Orrin ‘‘legislation aimed at limiting the use of mittee; the American Conservative Hatch that these were merely the Clinton union dues in political activity’’ (italics Union; C. Everett Koop, former U.S. Administration’s, not her personal, views. added): John Hilley [Director of Legislative Surgeon General, and the Ethics & Re- However, later, on October 31, 1996, Ms. Affairs], Bruce Reed [Director of the Domes- ligious Liberty Commission of the Kagan was one of several White House staff tic Policy Council], and I all recommend Southern Baptist Convention. members whose memorandum recommending that you state strong opposition to Beck leg- There being no objection, the mate- how the White House should respond to ques- islation, no matter what it is attached to.’’ rial was ordered to be printed in the tions about President Clinton’s ‘‘Campaign In sum, as a high-level White House offi- Finance Reform Announcement’’ was trans- cial Ms. Kagan both disagreed with the well- RECORD, as follows: mitted to White House Chief of Staff Leon established legal principle that underlies the NATIONAL RIGHT TO Panetta. That memo from Ms. Kagan and long line of Supreme Court decisions recog- WORK COMMITTEE, others incorporated Ms. Kagan’s argument nizing the constitutional right of workers Springfield, VA, July 1, 2010. that the First Amendment does not protect not to be compelled to subsidize union polit- U.S. SENATE, the right to spend money for political activi- ical activities as a condition of employment Washington, DC. ties. In short, in 1996 Ms. Kagan both sug- and opposed any legislation designed to pro- DEAR SENATOR: On behalf of the over 2.6 gested and endorsed that crabbed view of tect that fundamental right of free speech million members of the National Right to the. First Amendment. and free association. This puts her far out- Work Committee, I strongly urge you to vote Thus, Ms. Kagan’s testimony this week be- side the judicial mainstream and dem- against confirmation of Elena Kagan for a fore the Senate Judiciary Committee clearly onstrates a disdain for the rights of inde- lifetime seat on the United States Supreme is disingenuous. It is reasonable to conclude pendent-minded American workers. Court. Her record as an high-level White from her record that, if confirmed, Ms. Consequently, on behalf of the National House advisor to President William Jefferson Kagan would be willing to overrule Abood’s Right to Work Committee’s over 2.6 million Clinton demonstrates that her views about well-established protection of the constitu- members, I strongly urge you to vote NO on the First-Amendment and statutory rights tional right of workers not to be forced to confirmation of Ms. Kagan’s nomination to of American workers are far outside the judi- subsidize union politics. the Supreme Court. cial mainstream. This conclusion is supported by other doc- Respectfully, In 1976, in Abood v. Detroit Board of Edu- uments the Clinton Presidential Library re- MARK A. MIX. cation, a case in which National Right to cently produced for the Senate Judiciary Work Legal Defense Foundation attorneys Committee in preparation for its hearings on DEAR SENATOR: On behalf of the American represented the plaintiff, public school Ms. Kagan’s Supreme Court nomination. Conservative Union, I strongly urge you to teachers, the U.S. Supreme Court considered On November 14, 1996, Ms. Kagan sent a vote ‘‘NO’’ on the confirmation of Elena whether nonunion public employees can con- memorandum on White House stationery to Kagan to the U.S. Supreme Court. stitutionally be compelled as a condition of then White House Counsel Jack Quinn and Elena Kagan’s entire career is more suited employment to subsidize their union monop- then Deputy White House Counsel Kathleen to that of a political activist than a legal oly bargaining agent’s political activities. Wallman about a draft ‘‘memo to the Presi- scholar, as she has been described by Presi- The Court, unanimously, held ‘‘that a State dent on campaign finance.’’ In her memo, dent Obama and as she described herself in cannot constitutionally compel public em- Ms. Kagan said: her testimony. Kagan began public life as a ployees to contribute to union political ac- The memo does not address what seems to political operative for the U.S. Senate cam- tivities which they oppose.’’ me the key issue in developing a strategy on paign of Elizabeth Holtzman of New York in The First-Amendment right of workers not campaign finance legislation: how to deal 1980. The documents produced for the Judici- to be forced to subsidize union politics, first with Republican efforts to restrict labor ary Committee show that, as a member of recognized in Abood, has been reaffirmed by union spending. I think the Republicans will the Clinton Administration’s Justice Depart- the Supreme Court in several subsequent insist on including in any campaign finance ment, Kagan’s primary role was to develop cases brought to the Court for workers by legislation a provision making it difficult for political strategy in dealing with the Con- National Right to Work Legal Defense Foun- unions to use money from compulsory union gress on legal issues. A good example of this dation attorneys, cases such as Ellis v. Rail- dues in political campaigns. . . . We should is when the issue of partial birth abortion way Clerks (1984), Teachers Local 1 v. Hud- start thinking now how we’re going to deal came before the Senate during the Clinton son (1986), Lehnert v. Ferris Faculty Ass’n with this Republican poison pill. administration. At this time Kagan pro- (1991), and Davenport v. Washington Edu- In 1988, of course, in Communications ceeded to negotiate changes to a statement cation Ass’n (2007). Workers v. Beck, yet another case in which by the American Council of Obstetricians The Court’s Abood ruling relied on the National Right to Work Legal Defense Foun- and Gynecologists (ACOG) that said there principle underlying the Supreme Court’s dation attorneys represented the plaintiff were no serious medical reasons for con- 1976 decision about the Federal Election workers, the Supreme Court had already ducting a partial birth abortion. Kagan’s in- Campaign Act in Buckley v. Valeo, that held that the National Labor Relations Act— volvement made it more difficult for the ‘‘contributing to an organization for the pur- like the First Amendment—prohibits unions Senate to pass a ban on partial birth abor- pose of spreading a political message is pro- from using compulsory union dues of object- tion. This example clearly displays that tected by the First Amendment.’’ The Court ing workers in political campaigns. Thus, Kagan is more of a political operative than a has reiterated that principle repeatedly, and any provision that would make ‘‘it more dif- legal scholar.

VerDate Mar 15 2010 05:41 Dec 01, 2010 Jkt 079060 PO 00000 Frm 00072 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\AUGUST\S05AU0.REC S05AU0 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE August 5, 2010 CONGRESSIONAL RECORD — SENATE S6827 Another serious impediment to Kagan’s Not only have I never seen such a case, but Consequently, we urge you to vote against nomination is her deep involvement as the I have never known of any physician who had Kagan’s confirmation to the Supreme Court. Obama Administration’s Solicitor General to do a partial-birth abortion—nor have I Sincerely, on issues that will continue to come before ever met a physician who knew of anyone RICHARD D. LAND. the Supreme Court. This may mean that who had to perform one out of medical neces- The PRESIDING OFFICER. The Sen- Kagan will or should have to recuse herself sity. In fact, partial-birth abortion has risks ator from Kentucky. from key decisions of the court. As outlined of its own, and could injure a woman. Mr. MCCONNELL. Mr. President, let in a letter from Republican members of the Medical science should not have been me begin by thanking the chairman Committee on July 13 to Kagan, there is twisted in 1997 for political or legislative even a question as to whether recusal will be gains. and ranking member of the Judiciary an issue when the constitutionality of the Ms. Kagan’s political language, a direct re- Committee, Senator LEAHY and Sen- recently passed health care bill comes before sult of the amendment she made to ACOG’s ator SESSIONS, on conducting a dig- the court. Policy Statement, made its way into Amer- nified and respectful hearing on the Kagan has also shown herself willing to ig- ican jurisprudence and misled federal courts Kagan nomination. nore the law for political purposes. As Dean for the next decade. Let me just add that, in my view, the of the Harvard Law School, Kagan banned She misrepresented not only the science military recruiters on campus in violation of way Republicans on the Judiciary but also misrepresented her role in front of the Solomon Act to satisfy campus activists. Committee have conducted themselves your elected representatives in the United Her actions were voided by a unanimous 8–0 in the minority over the past few years States Senate. decision of the very court on which she has underscores that the kind of hyperbole been nominated to serve. This is unethical, and it is disgraceful, es- and hysteria that has too often accom- pecially for one who would be tasked with Although through the mid-twentieth cen- panied the Supreme Court nominations tury, court appointments of politicians were being a measured and fair-minded judge. Americans United for Life Action has re- of Republican Presidents is hardly an sometimes made to satisfy political deals, essential part of the process. The com- such as the appointment of Earl Warren in leased a thorough and comprehensive report the 1950s, in recent years judicial experience on this matter, a report that provides sub- mittee hearings gave Senators and the and legal background have been at the fore- stantive evidence of Ms. Kagan’s actions in American people a valuable oppor- front of nominations. The nomination of this matter. I ask that Senators and the tunity to focus our attention on a Elena Kagan is more akin to President Lyn- American people give this report their most woman whom President Obama would don Johnson’s nomination of political crony serious consideration. I urge the Senate to like to see deciding cases on some of Abe Fortas as Chief Justice, which had to be reject the politization of medical science and the most important and consequential vote no on the Kagan nomination. withdrawn. issues we face as a country. Ms. Kagan It was President Obama, as a U.S. Senator, Sincerely, who changed the criteria for judges from C. EVERETT KOOP, M.D., will be ruling on some of the most im- minimum qualifications to judicial philos- SC.D., portant legal questions that arise dur- ophy and more subjective criteria. The nomi- Surgeon General of the ing President Obama’s administration nation of Elena Kagan is a blatant attempt United States Public and long after he leaves office. It was to place on the court a political operative Health Service, 1981– vitally important that we have an op- who will work as an advocate of Administra- 89. portunity to question her on her views tion policies rather than look at rulings about the law. What we learned from from an objective view of constitutionality. THE ETHICS & RELIGIOUS LIBERTY the hearing and what we were unable Please vote ‘‘NO’’ in the confirmation of COMMISSION OF THE SOUTHERN to learn from it form an important Elena Kagan. BAPTIST CONVENTION, Sincerely, Washington, DC, July 20, 2010. part of the record on her nomination. LARRY HART, Hon. PATRICK J. LEAHY, But this, of course, is just a part of Director of Government Relations, Chairman, Senate Judiciary Committee, U.S. Ms. Kagan’s record. Senators have The American Conservative Union. Senate, Washington, DC. spent weeks examining Ms. Kagan’s ex- Hon. JEFF SESSIONS, perience and background in light of the AN OPEN LETTER TO THE AMERICAN PEOPLE: Ranking Member, Senate Judiciary Committee, awesome responsibility that comes For many years, before, during and after my U.S. Senate, Washington, DC. with a lifetime appointment on our Na- service as surgeon general of the United DEAR CHAIRMAN LEAHY AND RANKING MEM- States, I’ve been known for presenting my tion’s highest Court. As I have said BER SESSIONS: On June 25, we sent you a let- previously, my own judgment is that unvarnished opinion on medical matters, re- ter expressing serious concerns about Elena gardless of the views of political parties or Kagan’s nomination as the next associate Ms. Kagan is not suited to assume a outside influences. The time has come for me justice to the U.S. Supreme Court. As we lifetime position on our Nation’s high- to do so again. stated, we have been alarmed about Kagan’s est Court. Now I would like to explain I was deeply disturbed to learn that Elena lack of respect for the First Amendment’s why in more detail. Kagan, the nominee for Supreme Court right to free speech, her admiration for ex- As we know, Ms. Kagan does not have scheduled for a Senate committee vote next treme judicial activists, and her role in ad- week, manipulated the medical policy state- the judicial or private practice experi- vancing pro-abortion policies. We also ex- ence most modern-day Supreme Court ment on partial-birth abortion of a major pressed our distress about Kagan’s attempts, medical organization, the American College Justices have had—far from it. This is while dean of Harvard Law School, to bar relevant not because one has to have of Obstetricians and Gynecologists (ACOG) military recruiters from campus because of in January 1997. her own personal views in opposition to the prior judicial experience in order to be The problem for me, as a physician, is that military’s ‘‘Don’t Ask, Don’t Tell’’ policy. a good Supreme Court Justice—that is she was willing to replace a medical state- Unfortunately, these concerns remain. not my view now, and it never has ment with a political statement that was not been—but the absence of judicial expe- supported by any existing medical data. Dur- During the Judiciary Committee’s con- ing the partial-birth abortion debate in the firmation hearings, Kagan failed to satisfac- rience makes it all the more important 1990s, medical evidence was of paramount torily clarify her actions and opinions. Many that we look more closely at the kind importance. of her answers were confusing and unclear. of experience Ms. Kagan has, in fact, Ms. Kagan’s amendment to the ACOG Pol- She refused to respond to several key ques- had. A review of Ms. Kagan’s experi- icy Statement—that partial-birth abortion tions in an open and honest manner. She also ence reveals a woman who has spent ‘‘may be the best or most appropriate proce- avoided many issues altogether. Since Kagan has had no judicial experience and possesses much or her adult life not steeped in dure in a particular circumstance to save the the practice of law but in the art of life or preserve the health of a woman’’—had limited experience as a practicing attorney, no basis in published medical studies or data. we were interested in learning about her ju- politics. No published medical data supported her dicial philosophy. However, we learned little When we look at her resume, we find amendment in 1997, and none supports it about her beliefs and judicial views during a woman who has worked fervently to today. the confirmation hearings. Rather than pro- advance the goals of the Democratic Indeed, there was, and is, no reliable med- viding answers to our concerns, Kagan’s re- Party and liberal causes, usually at the ical data that partial-birth abortion is safe sponses have only raised more serious ques- expense of those with whom she dis- tions. or safer than alternative medical procedures. agrees politically or ideologically. In There are other medical options. After careful consideration, we believe In my many decades of service as a medical Elena Kagan is not a suitable nominee for college, she spent one summer working doctor, I have never known of a case where the Supreme Court. She has evaded too 14 hours a day for a liberal Democratic partial-birth abortion was necessary in place many questions and her record is too obscure candidate for the U.S. Senate from New of a more humane and ethical alternative. to confirm her to this lifetime appointment. York. When her candidate lost, Ms.

VerDate Mar 15 2010 05:41 Dec 01, 2010 Jkt 079060 PO 00000 Frm 00073 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\AUGUST\S05AU0.REC S05AU0 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S6828 CONGRESSIONAL RECORD — SENATE August 5, 2010 Kagan wrote that it was her hope that versity of Chicago Law School—se- from family connection, from personal one day a ‘‘more leftist left will once lected her to be his Solicitor General. attachment, or from a view to popu- again come to the fore.’’ I, and the vast majority of my Repub- larity.’’ That is Federalist 76. In fairness, few of us would want ev- lican colleagues, voted against her Now let’s look at Federalist 78, which erything we said or wrote as college nomination to that position, given her talks about the role of the courts in students put up on a billboard. But the lack of litigation experience. Indeed, our democracy and the proper philos- trajectory of Ms. Kagan’s career and Ms. Kagan made her first oral argu- ophy for a judge. Here, Hamilton writes the records from her time as a political ment in any court, for any purpose, that courts may not ‘‘substitute their advisor in the Clinton White House just last year in the Citizens United own pleasure to the constitutional in- suggest someone, as one news story put case. Having been in the courtroom tentions of the legislature.’’ He adds it, who, long after college and even at myself that day, I heard her argue to that their job must be to ‘‘declare the the highest peaks of political influ- an astonished Supreme Court that the sense of the law’’ and that if, instead, ence, was ‘‘driven and opinionated, power of the Federal Government is so they should exercise their ‘‘WILL’’— with a flair for political tactics. . . .’’ vast it can ban political speech with which he puts in all capital letters— What else do we find in Ms. Kagan’s which it disagrees, such as political ‘‘the consequence would be . . . the resume? pamphlets, despite the clear commands substitution of their pleasure to that of Well, 8 years after that first Senate of the first amendment to the con- the legislative body.’’ In other words, race, she volunteered for the Dukakis trary. Hamilton was cautioning against Presidential campaign, working as an So when we look at Elena Kagan’s judges so motivated by their own pas- opposition researcher to defend the background, what we find again and sions and sympathies that they would then-Governor of Massachusetts from again is someone who has worked tire- use their judicial power to implement, attacks and to look for ways to attack lessly to advance a political agenda or as President Obama puts it, ‘‘their the Republican opposition. I note her ideology, often at the expense of the broader vision of’’ what ought to be. job as an opposition researcher because law. So while Hamilton, in Federalist 76, it is part of a pattern of partisan polit- Let’s look for a moment at her rela- listed some of the reasons for disquali- ical activity and because Democrats tionship to the current administration. fying a nominee, this was clearly not themselves have strongly questioned We know the President and Ms. an exhaustive list. Surely he did not the impartiality of Republicans who Kagan are former colleagues and lay out the critical qualification for a have held this type of job. friends. We know that the President judge in Federalist 78 and then leave As a Supreme Court law clerk, Ms. views her as an important and loyal the Senate powerless to enforce it. Kagan often inserted her own personal member of his team and that he was Both papers must be read together, not views into her legal advice. In one case, particularly pleased with her handling in isolation, which brings us back to for example, she was dismissive of a of the Citizens United case. And we Ms. Kagan. man’s second amendment claim be- know the President is confident that If you believe the role of a judge is to cause it was something that, in her Ms. Kagan shares his view that judges be an impartial arbiter, Ms. Kagan’s words, she did not find to be ‘‘sympa- should be judged especially on their background as a policy advocate and thetic.’’ ability to empathize with some over political lawyer—and oftentimes a very Later, as an aide to President Clin- others—in other words, that she em- partisan one—cannot be ignored. In- ton, she did not serve as an attorney braces the so-called empathy standard deed, Members of both parties should but as a policy advocate, seeking legal whereby judges act on, to quote the appreciate the importance of con- advice rather than giving it. It was in President, ‘‘their broader vision of firming judges who are more interested this role that she helped lead a task what America should be,’’ which may in what the law says than in how the force on changing the Nation’s cam- or may not be what the law says is re- law can be used to advantage any one paign finance laws and gleefully noted quired. All of which brings us to the side. when one specific proposal would dis- question of whether Ms. Kagan is suit- As the chairman of the Judiciary advantage Republicans. She also went ed to sit on the Supreme Court. Committee once put it: out of her way to deter lawyers at the We do not have a judicial or private No one should vote for somebody that’s Justice Department from officially practice record to go to, but from the going to be a political apparatchik for either noting their serious constitutional con- record we do have—that of a passionate the Democratic Party or the Republican cerns with a campaign finance proposal policy advocate, a zealous political op- Party. because it might complicate the pur- erative, and a loyal member of the If you believe the role of a judge is to suit of the Clinton administration’s po- Obama administration—the President be an impartial arbiter, Ms. Kagan’s re- litical goals. picked precisely—precisely—the kind lationship to the President can’t be ig- It was also at the Clinton White of judge he said he would. But is this nored either. I think our friend, the House that she suggested turning a the end of the inquiry? The President senior Senator from Ohio, put his fin- routine literacy event at a Maryland won the election. Ms. Kagan is bright. ger on what Federalist 76 was talking school into a chance to score political She has a good humor. Does the Con- about in this regard. As he put it ear- points against—you guessed it—Repub- stitution suggest that we therefore lier this week: licans. And it was there that she went must assent to her nomination? Is that I would argue that General Kagan has been to extraordinary lengths to prevent the what the Founders envisioned? nominated based on her friendships and her enactment of a ban on partial-birth Well, the Federalist Papers say two personal attachments with President Obama abortion, a procedure the vast majority things that are particularly relevant and others at the White House, not based on of Americans strongly oppose. here. objective qualities that would indicate she is From the Clinton administration, she First, let’s look at Federalist 76, qualified to be a Supreme Court Justice. went on to academia. She had strongly which gives examples of specific dis- As for the empathy standard, well, held views and acted upon them there qualifiers for confirmation. The com- empathy may be a very good quality in as well. As dean of Harvard Law mon theme for these disqualifiers is general, but in a court of law it is only School, she refused to give our mili- someone who is nominated not because good if you are lucky enough to be the tary, at all times, the full and good ac- of their objective qualifications but be- guy the judge empathizes with. It is cess to which they are entitled under cause of a personal connection to the only good enough if you happen to Federal law. Indeed, she was so driven Executive—be it friendship, family re- share the judge’s ‘‘broader vision of by her own personal views on this issue lationship, or a belief that they will ex- what America ought to be,’’ which is that she took a position in a case be- hibit a bias. It says the Senate’s power the exact opposite of what the author fore the Supreme Court that was so le- to disapprove a nominee ‘‘would be an of Federalist 78 had in mind. gally dubious that not a single Justice excellent check upon a spirit of favor- Let’s say you are a pro-life group agreed with it. itism in the President, and would tend challenging a restriction on late-term From Harvard, President Obama—her greatly to prevent the appointment of abortion and you are appearing before friend and former colleague at the Uni- unfit characters from State prejudice, a Justice Kagan. In light of the lengths

VerDate Mar 15 2010 05:41 Dec 01, 2010 Jkt 079060 PO 00000 Frm 00074 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\AUGUST\S05AU0.REC S05AU0 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE August 5, 2010 CONGRESSIONAL RECORD — SENATE S6829 she went to in order to arrive at her ators proceed to the Senate floor to as its first woman and more than a dec- preferred result on the subject of par- cast their votes. We ask that Senators ade longer before Ruth Bader Ginsburg tial-birth abortion, do you think you be seated when they cast their votes. would join her as its second. A year ago are going to get a fair shake? Decades before America’s founding— today, Ginsburg was the only woman Let’s say you think the government when its direction was only roughly Justice, but when it opens this fall, is infringing upon your second amend- charted and its doctrines still in draft three women—a full third of the ment rights. Given that she form—a lawyer from Massachusetts bench—will preside together for the dismissively said she is not sympa- wrote that ours must be a nation of first time. That is progress. It is not thetic to this sort of challenge, do you laws and not of men. That man, John yet completely equitable in a nation think she is going to apply the law or Adams, knew that the rules and rights where women represent more than one- her own broader vision of how America of a free land must withstand personal half the population, but it certainly is should be? whims and political winds. It is a belief progress. Let’s say you are a conservative non- so basic Adams would later enshrine it That Sotomayor and Kagan can join profit group that wants to publish a in his State’s constitution. the Court in such relatively rapid suc- pamphlet or show a movie before an Today we will send to our highest cession is a tribute to the path their election. In other words, let’s say you Court another brilliant lawyer from predecessors cleared. are a group such as Citizens United. Massachusetts, Elena Kagan, someone Justice Ginsburg said last year that Given her record of partisan advocacy, whose respect for the rule of law is ‘‘women belong in all places where de- how do you think you are going to fare matched only by her appreciation for cisions are being made.’’ The Supreme before her in that case? those laws that concern the daily lives Court is certainly one of those places. Ms. Kagan has never made a secret of of the people they govern. The roots of Elena Kagan is certainly one of those her professional aspirations. She has General Kagan’s respect for the rule of women. cultivated all the right friendships law are in her respect for our separa- As the Senate votes for this nominee along the way, including the President tion of powers. It is a reverence she de- on her merits, we are also voting for of the United States. This is all well veloped during her service in all three the most inclusive Court in its long and good but, in my view, it strains branches of government, defending the history. It will be even more inclusive credulity to think that Ms. Kagan’s first and second amendments, strength- when we confirm more Justices who strong political views will be more con- ening our national security, and pro- don’t come from Ivy League schools. strained by the Constitution once she tecting children’s safety. In the oath General Kagan will soon reaches her goal than they have been Wherever Elena Kagan has gone take—the same oath sworn by 111 Jus- up until now. throughout her considerable career, tices before her—she will pledge to ‘‘do Some of Ms. Kagan’s supporters she has succeeded. At Princeton and equal right to the poor and to the would like us to focus on her person- Oxford, at the law schools at Harvard rich.’’ That is a commitment her prede- ality. They say she has a knack for and the University of Chicago and back cessor, Justice John Paul Stevens, al- making friends and getting along well to Harvard once again, in the private ways fulfilled. We are grateful for Ste- with different kinds of people. Once sector and in the highest levels of gov- vens’ long record of service as a deco- again, these are all fine qualities. No ernment, she has brought together peo- rated war veteran, a successful lawyer, one has any doubt that Ms. Kagan is ple of every ideological stripe. and an impartial judge and Justice who bright and personable and easy to get In recent weeks, we have again seen summoned common sense in his opin- along with. But the Supreme Court is how effectively she impresses and ions. He was always passionate but al- not a social club. If getting along in po- unites those she meets. Look at the in- ways a gentleman. lite society were enough reason to put credibly diverse array of people and or- Stevens once wrote: ‘‘Corporations someone on the Supreme Court, then ganizations speaking in unison in favor are not part of ‘We, the People’ by we wouldn’t need a confirmation proc- of her nomination, including every So- whom and for whom our Constitution ess at all. licitor General, no matter the party, was established.’’ General Kagan be- The goal was not to determine over the last quarter century. Now she lieves that too. It is the principle she whether we think someone is smart is poised to join a Court whose power and easy going; it is whether someone she respects as well as its limits. She defended in her first case as the first can be expected to be a neutral and understands that the laws are made female Solicitor General; that is, our independent arbiter of the law rather only on this side of the street and only country’s chief lawyer, when she than a rubberstamp for this adminis- interpreted on the other side of the fought to stop foreign and domestic tration or for any other. street. corporations from drowning out Amer- Whether it is small claims court or Our Supreme Court promises equal ican voters’ voices. She knew it would the Supreme Court, Americans expect justice for all who come before its not be an easy case, but she stood for politics to end at the courtroom door. bench. We must also fulfill the promise fairness, transparency, and citizens’ Nothing in Elena Kagan’s record sug- of greater equality among those who rights because that is what a nation of gests that her politics will stop there. sit behind the bench. laws demands. Ms. Kagan’s background as a polit- Although the Founders did not want General Kagan learned from another ical operative, her lengthy resume of ours to be a government of men, for a trailblazing Justice and her personal zealous advocacy for political and ideo- long time men were the only ones run- hero, Thurgood Marshall, that behind logical causes, often at the expense of ning it. The most qualified women were the law lived real people. She knows the law and those whose views differ turned away—turned away—one after the Court’s rulings can affect working from her own, her attachment to the another. Justice O’Connor graduated families as intimately as they do President and his political and ideolog- third in her law school class at Stan- wealthy interests. ical goals, including his belief in the ford, one of the premier law schools in The American people deserve a Jus- extraconstitutional notion that judges this country, while others her age were tice who understands that one liti- should favor some over others, make just finishing college. The only job gant’s case is no more justified simply her precisely the kind of nominee, in offer she got after graduating third in because he has more money than his my view, the Founders were concerned her class was a job as a legal secretary. opponent. Elena Kagan will be that about and that Senators should have Justice Ginsburg graduated first in Justice. reason to oppose. her law school class at Columbia, an- We need a voice on the Supreme For these reasons, I will vote against other premier law school, but not a sin- Court who remembers and reveres the the nominee, and I urge my colleagues gle law firm would hire her either. She rights of individuals, not because peo- to do the same. was denied a clerkship not by one but ple are always right and corporations I yield the floor. two Supreme Court Justices because, are always wrong but because the argu- The PRESIDING OFFICER. The ma- as they readily admitted, she was a ment of even the poorest citizen should jority leader is recognized. woman. be heard just as loudly, with the same Mr. REID. Mr. President, the Repub- It took nearly 200 years before the patience and deliberation and impar- lican leader and I recommend that Sen- Court welcomed Sandra Day O’Connor tiality as that of the richest firm.

VerDate Mar 15 2010 05:41 Dec 01, 2010 Jkt 079060 PO 00000 Frm 00075 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\AUGUST\S05AU0.REC S05AU0 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S6830 CONGRESSIONAL RECORD — SENATE August 5, 2010 Elena Kagan has demonstrated, time Dodd Klobuchar Reed Stacy Rich from Senator MURRAY’s Dorgan Kohl Reid and time again, that she understands Durbin Landrieu Rockefeller staff who helped manage the floor. that. Feingold Lautenberg Sanders I commend and thank the hard-work- In fact, listening is one of her strong Feinstein Leahy Schumer ing staffs of the other Democratic suits. Justice Stevens often said that Franken Levin Shaheen members of the Judiciary Committee Gillibrand Lieberman Snowe openly debated differences benefit de- Goodwin Lincoln Specter for their tremendous contributions to mocracy and he promoted what he Graham Lugar Stabenow this effort. called ‘‘understanding before dis- Gregg McCaskill Tester I also commend and thank Senator Hagan Menendez Udall (CO) SESSIONS, the committee’s ranking Re- agreeing.’’ The lawyer and teacher the Harkin Merkley Udall (NM) President has chosen to succeed Jus- Inouye Mikulski Warner publican, and his staff, in particular, tice Stevens believes the same. Johnson Murray Webb Brian Benczkowski, Danielle Cutrona, When General Kagan spoke last year Kaufman Nelson (FL) Whitehouse Ted Lehman, and Lauren Pastarnack, Kerry Pryor Wyden to graduates of Harvard Law School, for their hard work and profes- where she was beloved by the students NAYS—37 sionalism. and faculty alike, she reminded them: Alexander Crapo McConnell f ‘‘You only learn something when your Barrasso DeMint Murkowski Bennett Ensign Nelson (NE) LEGISLATIVE SESSION ears are open, not when your mouth is Bond Enzi Risch The PRESIDING OFFICER. Under open.’’ That shows wisdom. It takes a Brown (MA) Grassley Roberts smart person to recognize that we Brownback Hatch Sessions the previous order, the Senate will now make progress and make the right de- Bunning Hutchison Shelby return to legislative session. Burr Inhofe Thune cisions when we approach each person Chambliss Isakson The PRESIDING OFFICER. The Sen- Vitter Coburn Johanns ator from Michigan. and each problem with an open mind. Voinovich Cochran Kyl It takes a smarter one to say as much. Wicker f Corker LeMieux So I hope each Senator will approach Cornyn McCain UNANIMOUS CONSENT REQUEST— this vote the way General Kagan will The nomination was confirmed. S. 3454 approach each question that comes be- The PRESIDING OFFICER. A motion fore the Court: with deference to the Mr. LEVIN. Mr. President, it is obvi- to reconsider this vote is considered facts, the evidence, and our shared na- ous we are not going to be able to get made and laid on the table. The Presi- tional interests. to the Defense authorization bill this dent shall be notified of the Senate’s General Kagan is a public servant week. However, it is important we get action. who has remained far above the polit- to it as soon as possible after we re- Mr. LEAHY. Mr. President, the Sen- ical fray and will be the only Justice turn. In order to facilitate that, I ask ate has concluded our consideration of who comes from outside the judicial unanimous consent that at a time to be the nomination of Elena Kagan and monastery. She is a student and teach- determined by the majority leader, fol- confirmed her as an Associate Justice er of the law who looks up from her lowing consultation with the Repub- on the U.S. Supreme Court. For the books out into the real world. She lican leader, the Senate proceed to the second time in 2 years, we have consid- knows that while we are a nation of consideration of Calendar No. 414, S. ered a nomination for a lifetime ap- laws and not of men, the former has a 3454, national defense authorization. pointment to the Supreme Court, one The PRESIDING OFFICER. Is there genuine and personal impact on the of our most consequential responsibil- objection? lives of the latter. ities. I am proud that process we fol- Mr. MCCAIN. Reserving the right to Because of her intellect and integ- lowed in considering this nomination object, and I do so with some reluc- rity; her reason, restraint, and respect in the Judiciary Committee and in the tance, I remind my colleagues that last for the rule of law; her unimpeachable Senate has garnered praise from many year we took up the consideration of character and unwavering fidelity to Senators for its fairness and thorough- the Defense authorization bill without our Constitution, I am proud to cast ness. warning. The distinguished chairman my vote for Elena Kagan’s confirma- We could not have given this nomina- of the committee introduced a hate tion to be a Justice of the U.S. Su- tion the attention it deserved without crimes bill which had no business on preme Court. the help of dedicated staff. For months, the Defense authorization bill, filled up We are going to wait until the hour the staff of the Judiciary Committee the tree, and then, of course, we spent of 3:30 arrives before we start to vote. has worked long hours dutifully to ob- a great amount of time on hate crimes. Senator LEAHY, at that time, will have tain and review extensive amounts of I have only been a member of this a request to make. documents and information and help committee since 1987. I have never seen The PRESIDING OFFICER. The Sen- Senators in our review. I wish to thank what the chairman of the committee ator from Vermont is recognized. the following members of the majority did last year by bringing forth a to- Mr. LEAHY. Mr. President, I ask for staff in particular, Jeremy Paris, Erica tally irrelevant and very controversial the yeas and nays on the nomination of Chabot, Kristine Lucius, Shanna Singh issue and putting it on the Defense au- Elena Kagan to be an Associate Justice Hughey, Maggie Whitney, Hasan Ali, thorization bill. We spent weeks on on the Supreme Court of the United John Amaya, Sarah Hackett, Sarah that when we should have been spend- States. Hasazi, Michael Gerhardt, Elise ing time on defending this Nation. It The PRESIDING OFFICER. Is there a Burditt, Noah Bookbinder, Anya was a betrayal of the men and women sufficient second? McMurray, Liz Aloi, Tara Magner, who are serving this country. There is a sufficient second. Kelsey Kobelt, Juan Valdivieso, Matt I am not going to allow us to move The question is, Will the Senate ad- Virkstis, Curtis LeGeyt, Roslyne Turn- forward, and I will be discussing with vise and consent to the nomination of er, Erin O’Neill, Julia Gagne, Brian my leaders and the 41 Members of this Elena Kagan, of Massachusetts, to be Hockin, Joseph Thomas, Elizabeth side of the aisle as to whether we are an Associate Justice of the United Saxe, Katharine McFarland, Miles going to move forward with a bill that States Supreme Court? Clark, Christine Paquin, David contains the don’t ask, don’t tell policy The clerk will call the roll. Zayas, Lydia Griggsby, Adrienne repeal before—before—a meaningful The legislative clerk called the roll. Wojciechowski, Dan Taylor, Patrick survey of the impact on battle effec- The result was announced—yeas 63, Sheahan, Matt Smith, Scott Wilson, tiveness and morale of the men and nays 37, as follows: Kiera Flynn, Rachel Pelham, Bree women who are serving this Nation in [Rollcall Vote No. 229 Ex.] Bang-Jensen, Chuck Papirmeister, and uniform. YEAS—63 Bruce Cohen. I also thank my staff for It is, again, the chairman of the com- Akaka Bingaman Cardin their hard work on this nomination, in mittee and the majority leader and the Baucus Boxer Carper particular, Edward Pagano, David other side moving forward with a social Bayh Brown (OH) Casey Begich Burris Collins Carle, Laura Trainor, and Kevin agenda on legislation that was in- Bennet Cantwell Conrad McDonald. I would also like to thank tended to ensure this Nation’s security.

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