Congressional Record—Senate S5296
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S5296 CONGRESSIONAL RECORD — SENATE June 23, 2010 The PRESIDING OFFICER. Without Citizens United—their judicial views lier this week, the Supreme Court has objection, it is so ordered. were much different. allowed many circuit splits to remain f Both Chief Justice Roberts and Jus- unchecked. There is an informative ar- tice Alito talked at length about how ticle in the July/August 2006 edition of NOMINATION OF ELENA KAGAN it was the legislative function to have the Atlantic entitled ‘‘Of Clerks and Mr. SPECTER. Madam President, I hearings, compile the record and find Perks,’’ written by Stuart Taylor, Jr. have sought recognition to comment the facts; that it was not a judicial and Benjamin Wittes. In that article, on the range of questions for Solicitor function, and that when judges engaged the authors point out about how much General Kagan on her forthcoming in that, they were engaging in legisla- time the Supreme Court Justices have, hearings before the Senate Judiciary tion. But when it came to the case of noting that one Justice produced four Committee. Citizens United, overturning a century popular books on legal themes while on Solicitor General Kagan has issued a of a prohibition on corporations engag- the bench, another is working on a $1.5 fairly broad invitation, in effect, on ing in paying for political advertising, million memoir, and another Justice questioning. In an article that she pub- both Chief Justice Roberts and Justice took 28 trips in 2004 alone and pub- lished in the Chicago Law Review back Alito found the 100,000-page record in- lished books in 2002, 2003, and 2005. in 1995, her comment at that time was, sufficient. Both of them talked about Madam President, I ask unanimous in part, as follows: stare decisis and the value of precedent consent to have printed in the RECORD When the Senate ceases to engage nomi- and the factors that led to the the full article to which I just referred. nees in meaningful discussion of legal issues, strengthening of stare decisis. Chief There being no objection, the mate- the confirmation process takes on an air of Justice Roberts spoke emphatically rial was ordered to be printed in the vacuity . and the Senate becomes incapa- about not giving the legal system a RECORD, as follows: ble of either properly evaluating nominees or ‘‘jolt.’’ Well, that is hardly what has [From the Atlantic, July/August 2006] appropriately educating the public. For happened during their tenure on the OF CLERKS AND PERKS nominees, the safest and surest route to the bench. WHY SUPREME COURT JUSTICES HAVE MORE prize lay in alternating platitudinous state- FREE TIME THAN EVER—AND WHY IT SHOULD ments and judicial silence. Who would have So the question which we will put to Solicitor General Kagan, among oth- BE TAKEN AWAY done anything different in the absence of (By Stuart Taylor Jr. and Benjamin Wittes) pressure from Members of Congress? ers, is, How does Congress get those There are few jobs as powerful as that of That is a fair-sized invitation for a promises translated into actual prac- tice? And in making the comments Supreme Court justice—and few jobs as little pressure from Members of the cushy. Many powerful people don’t have time Senate. I think she is right in her pro- about Chief Justice Roberts and Jus- for extracurricular traveling, speaking, and nouncements, and it is something we tice Alito, I do so without challenging writing, let alone for three-month summer ought to do. She goes on to write in the their good faith. There is a big dif- recesses. Yet the late Chief Justice William law review article: ference between answering questions in Rehnquist produced four popular books on a Judiciary Committee hearing and de- legal themes while serving on the bench. Chairman Biden and Senator Specter, in Clarence Thomas has been working on a $1.5 particular, expressed impatience with the ciding a case in controversy. But the question remains as to how we handle million memoir. And Sandra Day O’Connor, game as played. Specter warned that the Ju- who retired to general adulation, took twen- diciary Committee one day would ‘‘rear up that. ty-eight paid trips in 2004 alone, and pub- on its hind legs’’ and reject a nominee who As expressed in my statement earlier lished books in 2002, 2003, and 2005. refused to answer questions. Senators do not this week, I am very much concerned All this freelancing time breeds high-hand- insist that any nominee reveal what kind of about the fact that there has been a edness. Ruth Bader Ginsburg tars those who a Justice she would make by disclosing her denigration of the strong constitu- disagree with her enthusiasm for foreign law views on important legal issues. Senators tional doctrine of separation of power with the taint of apartheid and Dred Scott; have not done so since the hearings on the and that we have moved to a con- Antonin Scalia calls believers in an evolving nomination of Judge Bork. Constitution ‘‘idiots,’’ and carries on a pub- centration of power. That has happened lic feud with a newspaper over whether a Solicitor General Kagan goes on to by the Supreme Court taking on the write: dismissive gesture he made after Sunday proportionality and congruence test, Mass—flicking fingers out from under his A nominee lacking a public record would which, as Justice Scalia noted in a dis- chin—was obscene. Meanwhile, on the bench have an advantage over a highly prolific au- sent, is a ‘‘flabby’’ test designed for ju- the justices behave like a continuing con- thor. dicial legislation. stitutional convention, second-guessing There has been some questioning as The Court has also ceded enormous elected officials on issues from school dis- to whether this nominee has such a powers to the executive by refusing to cipline to the outcome of the 2000 election, small paper trail that it will be doubly while leaving unresolved important, if dust- decide cases where there are conflicts dry, legal questions that are largely invisible difficult, or significantly more dif- between the executive and legislative to the public. ficult, to find out her views. But in her branches. I spoke at length earlier this Many lawmakers are keen to push back law review article, noting the dif- week about the failure of the Supreme against a self-regarding Supreme Court, but ference with that kind of a paper trail Court to deal with the conflict between all of the obvious levers at their disposal in- is, again, another invitation. Congress’s Article I powers in enacting volve serious assaults on judicial independ- The author of the law review article, the Foreign Intelligence Surveillance ence—a cure that’s worse than the disease of Solicitor General Kagan, goes on to judicial unaccountability. The Senate has al- Act versus the President’s authority as ready politicized the confirmation process write: Commander in Chief. I did that in the beyond redemption, and attacking the fed- The Senators’ consideration of a nominee, context of noting that the Supreme eral courts’ jurisdiction, impeaching judges, and particularly the Senate’s confirmation Court has time for deciding many more and squeezing judicial budgets are all bludg- hearing, ought to focus on substantive cases. eons that legislators have historically avoid- issues. These are, I think, impressive statis- ed, and for good reason. Well, that, then, raises the question tics. In 1886, the Supreme Court had So what’s an exasperated Congress to do? about how do you get answers on sub- 1,396 cases on its docket and decided 451 We have a modest proposal: let’s fire their clerks. stantive issues, and what is the value cases. In 1987, a century later, the Su- Eliminating the law clerks would force the of the substantive issues when the preme Court issued 146 opinions. By justices to focus more on legal analysis and, nominee, after being confirmed, is on 2006, the Supreme Court heard argu- we can hope, less on their own policy agen- the bench? ment on 78 cases, wrote opinions in 68. das. It would leave them little time for silly Earlier this week, I made an exten- In 2007, they heard argument in 75 speeches. It would make them more ‘‘inde- sive statement reviewing the records of cases, wrote opinions in 67 cases. In pendent’’ than they really want to be, by Chief Justice Roberts and Justice Alito 2008, they heard arguments in 78 cases, ending their debilitating reliance on in their confirmation hearings. Al- twentysomething law-school graduates. Per- wrote opinions in 75 cases. haps best of all, it would effectively shorten though both professed to give great In addition to not deciding cases such their tenure by forcing them to do their own deference to Congress on findings of as the terrorist surveillance program work, making their jobs harder and inducing the facts of the record, when it came to and the sovereign immunities case, them to retire before power corrupts abso- making a decision—for example, in which I talked about extensively ear- lutely or decrepitude sets in. VerDate Mar 15 2010 23:39 Jun 23, 2010 Jkt 089060 PO 00000 Frm 00014 Fmt 4624 Sfmt 0634 E:\CR\FM\G23JN6.024 S23JNPT1 rfrederick on DSKB9S0YB1PROD with SENATE June 23, 2010 CONGRESSIONAL RECORD — SENATE S5297 No justice worth his or her salt should once they are on the bench, what they for years the practice in this country. need a bunch of kids who have never (or are talking about in the confirmation The executive branch did not handle it, barely) practiced law to draft opinions for hearings? That is hard to determine.