June 28, 2010 CONGRESSIONAL RECORD — SENATE S5475 good if you are lucky enough to be the If you believe the role of a judge is to The PRESIDING OFFICER. Without guy the judge empathizes with. In be an impartial arbiter, these things objection, it is so ordered. those cases, it is the judge, not the law, cannot be ignored. Indeed, Members of Mr. DORGAN. Madam President, I who determines your fate. both parties should appreciate the im- listen sometimes on the floor of the In a nation such as ours, conceived portance of confirming judges who are Senate and think there should be an from its very beginning as a nation not more interested in what the law says Olympic Gold Medal for flexibility. It of men but of laws, this is a very dan- than in how the law can be used to ad- is interesting. For example, the flexi- gerous road to go down. In the case of vantage any one individual, party, or bility would mean you are flexible President Obama’s previous nominee to group. It is to no one’s advantage if enough to understand if a Republican the Supreme Court, Senators had many judges cannot be expected to rise above President were to send down a nominee years of court cases to study in deter- politics. As the chairman of the Judici- for the Supreme Court, and that person mining whether Sonia Sotomayor ary Committee once put it: had never served as a judge previously, could be expected to treat everyone No one should vote for somebody that’s that would be a big advantage, and you who came before her equally, just as going to be a political apparatchik for either would argue that would be something Americans would expect in a judge and the Democratic Party or the Republican that is very salutary, that this person Party. just as the judicial oath requires. In does not have judicial experience. Such Elena Kagan’s case, however, no such If there is one thing we can all agree was the case of Chief Justice on, it is that politics should end at the record exists. She has no experience as Rehnquist, who did not have such expe- courtroom door. a judge, nor does she have much of a So this is one of the key questions rience. But because they were nomi- record as a legal practitioner. This is Senators will be looking to answer as nated by a Republican, it was a big ad- one of the reasons some have raised these hearings proceed: Is someone who vantage not to have judicial experi- Ms. Kagan’s experience as an issue. has done the kind of political work Ms. ence. Now a Democrat sends a nominee It stands to reason that in order to Kagan has done in her career more or down and all of a sudden not having ju- know what kind of judge John Roberts less likely to restrain her political dicial experience is a liability. That is or Sam Alito or Sonia Sotomayor views if she were confirmed to a life- some flexibility, as far as I am con- would be, it was useful for Senators time position on the country’s highest cerned. from both parties to look at the kind of Court? I met with the nominee, Ms. Kagan, judge these nominees had been. Since Ms. Kagan has never made a secret of and she is a great nominee. I am sure Ms. Kagan has not had the judicial or her professional aspirations. She has she is going to be confirmed easily in private practice experience common to cultivated all the right friendships the Senate. I cannot believe the Judici- most modern-day nominees, it is all along the way, which is all well and ary Committee will have any oppor- the more important that we look more good. No one ever rose to the heights of tunity to find very much wrong with closely at the kind of experience she their profession by ignoring or upset- this very credible, very high-qualified, has had. A review of that experience re- ting the people who could get them well-qualified nominee. I did not come veals a woman who has spent much of there. But the question before us is here to say that. But listening, again, her adult life not steeped in the prac- whether Ms. Kagan’s political views as I do, I keep hearing the sound of tice of law but in the art of politics. To would be more or less constrained by sawing on the floor of the Senate, saw- be more specific, when we look at the Constitution she swears to uphold ing away in a partisan manner. I sim- Elena Kagan’s resume, what we find is once she reaches her goal. ply wanted to observe that much of a woman who spent much of her adult Some of Ms. Kagan’s supporters wish this has very little to do with sub- life working to advance the goals of the us to focus on her personality. They stance and has everything to do with Democratic Party. wish to point out she has a knack for partisan politics that we hear on the As a young woman in college, she making friends and for getting along floor of the Senate. spent one summer working 14 hours a well with different kinds of people in f day for a liberal Democratic candidate academia and among the political for the Senate, and when her candidate class. Once again, these are all fine REMEMBERING SENATOR ROBERT lost, Ms. Kagan wrote that she believed qualities. No one has any doubt that C. BYRD the ‘‘world had gone mad, that lib- Ms. Kagan is bright and personable and Mr. DORGAN. Madam President, eralism was dead.’’ If all we had were easy to get along with. But the Su- today I rise on the floor of the Senate the comments of an impassioned young preme Court is not a dinner club. If recognizing that we have white roses student, they would not be worth all getting along in polite society were and a black drape adorning the desk of that much. Few of us would want ev- enough to put somebody on the Su- the late Senator ROBERT C. BYRD. erything we wrote as a college student preme Court, then we would not need I had told him personally in the past put up on an overhead projector. confirmation hearings at all. that when my service is done I will Yet the trajectory of Ms. Kagan’s ca- The goal here is not to determine have considered it a great privilege to reer, the testimony of those who know whether we think someone will get have served in this body at the time her work well, and the recently re- along well with the other eight Jus- when ROBERT BYRD served in this body. leased records of her time as a political tices; it is whether someone can be ex- He was a lot of things. He was smart adviser in the Clinton White House, pected to be a neutral and independent and tough and honest. Because he leg- suggest otherwise. Taken together, arbiter of the law rather than a islated and because of his career here, they suggest someone, as one news rubberstamp for any administration. this is a better country, I am convinced These are just some of the questions story put it, who long after college and of that. Senators will be asking and which Ms. even at the highest peaks of political All of us know Senator BYRD grew Kagan will be expected to answer. No old here and became someone with influence was ‘‘driven and opinionated, one should have any doubt that Repub- health problems in recent years and with a flare for political tactics. .’’ licans will treat Ms. Kagan with the What else do we find in Ms. Kagan’s same respect and professionalism they yet even last week would come to this resume? Well, she volunteered for the treated Judge Sotomayor. But ques- Chamber and cast his vote. In recent Dukakis Presidential campaign, work- tions must be answered and clear judg- weeks I had several visits with him on ing as an opposition researcher to de- ments must be made. the floor of the Senate. fend the then-Governor of Massachu- Madam President, I suggest the ab- All of us know as well that he loved setts from attacks, and to look for sence of a quorum. his country. He, most of all, loved the ways to attack the Republican opposi- The PRESIDING OFFICER. The Senate. He wrote a two-volume book of tion. As an aide to President Clinton, clerk will call the roll. history on this body, and I say to any- Ms. Kagan did not serve mostly as an The assistant legislative clerk pro- body listening, if they enjoy history attorney, as she put it, but as a policy ceeded to call the roll. and enjoy knowing anything about the advocate, frequently looking for ways Mr. DORGAN. Madam President, I wonderful history of this body, read to advantage Democrats over Repub- ask unanimous consent that the order what Senator BYRD has written. It is licans. for the quorum call be rescinded. extraordinary. VerDate Mar 15 2010 03:31 Oct 09, 2010 Jkt 089060 PO 00000 Frm 00011 Fmt 4624 Sfmt 0634 E:\RECORD10\RECFILES\S28JN0.REC S28JN0 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S5476 CONGRESSIONAL RECORD — SENATE June 28, 2010 He loved the Constitution of the Senator BYRD recited the summation Aesop’s fable, sitting on an axle of a United States, and he never appeared to the jury, and he did it without a chariot, ‘‘My, what dust I do raise.’’ on the floor of the Senate without hav- note.