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Nomination Elena Kagan

Floor Speech

By:
Date:
Location: Washington, DC

Mr. SESSIONS. Mr. President, the Judiciary Committee is now reviewing the record of Elena Kagan, President Obama's nominee to the Supreme Court. The truth is, her legal record is thin. She has never been a judge and has very limited experience even in the practice of law. She has never tried a case, never cross-examined a witness or made a closing argument in a trial.

A lack of judicial experience is not a total disqualifier for the job of Supreme Court Justice, but it is true and fair to say this nominee has less real legal experience than any nominee confirmed to the Court in the last 50 years. That fact concerns me and many Americans. Ms. Kagan's lack of experience puts even greater emphasis on the central question in the nomination process: If confirmed, what kind of judge will Elena Kagan be? Will she take the traditional view that judges are impartial umpires who decide cases based on the rule of law under the Constitution? Or is she from the activist school, which teaches that judges may take sides and reinterpret the meaning of our laws to advance certain political agendas the judge may find acceptable or desirable or better? Are judges empowered to do that in the American system?

The American people have a right to know. This is no time for a stealth candidacy to the Court. We know one thing. We know her political views are leftist and progressive. That is clear from her record. She has a rather extensive political record. But with no judicial record and little legal record, clues to Ms. Kagan's judicial philosophy can be found perhaps by looking at people she admires, her mentors, judges she thinks represent the best way of conducting their office.

The three judges Ms. Kagan most often mentions are Judge Abner Mikva, Justice Thurgood Marshall, and former Israeli Judge Aharon Barak. Together I think it is fair to say these three judges represent the vanguard of a judicial activist movement that has certain intellectual roots and is quite afoot in our law schools and some of our legal commentators.

Each of these judges affirms the concept that a judge's own views, their personal views, may--sometimes even should--guide their interpretations of the law. In effect, this philosophy argues that the outcome of the case is more important than the legal process that guides the decisions, more important than fidelity to the Constitution. These Kagan heroes believe judges should have the power to make law. This results-oriented philosophy raises questions about whether Ms. Kagan may see judicial power as a way to advance her philosophy. It is a liberal, big government agenda for America. She has been active in that philosophy throughout her lifetime.

Let's look at some of her heroes in more detail. Judge Mikva is someone with whom she has been close. He was appointed to the bench by President Carter a number of years ago to the DC Circuit Court of Appeals.

She clerked for Judge Mikva in 1986 and 1987 and later worked for him in the Clinton White House. After he had resigned from the bench and came into the Clinton White House, she was hired to work with him in that office. On the day she accepted President Obama's nomination, Ms. Kagan noted that Judge Mikva ``represented the best in public service'' and that working for him was part of the ``great good fortune'' that had marked her career. He served five terms as a Congressman from Chicago, where he earned the reputation as ``the darling of American liberals.'' He has advocated for strict gun control, reportedly referring to the National Rifle Association as a ``street-crime lobby.'' He was a fierce opponent of the war in Vietnam and has said he supports the results in Roe v. Wade. The results.

Regarding how to interpret the Constitution or statute, Mikva has said that for ``most law, there is no original intent.'' The general view is that one should find out what the law was intended to mean when it was passed.

Some people dismiss that and are cynical about that, think that is an impossible goal. That is what Judge Mikva apparently believes. He has defined judicial activism as ``the decisional process by which judges fill in the gaps'' in the law and the Constitution. That is similar to President Obama's theory--which I think is flawed--that for ``the five percent of the cases that are truly difficult,'' the judge's decision depends on ``the depth and breadth of one's empathy.''

So the critical ingredient is supplied by what is in a judge's heart. Whatever a heart is, it is not the mind and it is not, therefore, objective judgment. It is more akin to something else. I have said this kind of thinking is more akin to politics than law. It is certainly not law, not in the American tradition of law.

Ms. Kagan also clerked for Justice Thurgood Marshall, whom she refers to as her hero. Indeed, Marshall is a historic figure. He was courageous at a time when courage was definitely needed and an effective leader in the civil rights movement. He was a great attorney and a fierce advocate for his clients and his ideals. He could be a hero of anyone as an American advocate and a person who played a fundamental role in the breakdown of segregation in America. But he also became one of the most active judges on the Court in our Nation's history.

In describing his own judicial philosophy, Marshall said that ``[y]ou do what you think is right and let the law catch up.'' He dissented in all death penalty cases because he and Justice Brennan declared the prohibition of ``cruel and unusual'' punishment that is in the Constitution barred any death penalty.

That might sound plausible in one sense. But in truth, this can never be a fair interpretation of the cruel and unusual clause in the Constitution,

since there are multiple references in the Constitution to the death penalty and how it should be carried out.

How could you possibly construe the document as a whole to say that ``cruel and unusual'' prevents the death penalty? Well, they did not like the death penalty; Marshall and Brennan did not. They thought it was wrong. They thought the world had developed and moved forward to a ``higher land'' and they were just going to declare it and the law would follow.

Well, according to Kagan, in Justice Marshall's view, ``constitutional interpretation demanded ..... that the courts show a special solicitude for the despised and disadvantaged.'' Certainly the courts should be sure that the despised or disadvantaged have a fair day in court. But the way this plays out, I believe, as suggested in the full remarks, is that it untethers the judge from the rule of law. I think it contradicts, in fact, the sworn oath of a judge, which reads ``I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me under the Constitution and laws of the United States, so help me God.'' Even so, Ms. Kagan said that showing ``a special solicitude'' for certain groups was Marshall's ``vision of the Court and Constitution. And ..... it [was] a thing of glory.'' Well, it certainly represents a great vision for an advocate, but I do think we need to be sure that the judge who puts on the robe is going to follow their oath to be impartial and to decide matters based on the law and facts.

But, interestingly, the judge Ms. Kagan praises the most happens to be perhaps the most activist judge on Earth: Aharon Barak, the former president--or chief justice--of the Israel Supreme Court. The respected Federal judge Richard Posner flatly described Barak as a ``judicial activist.'' Elena Kagan described him as her ``judicial hero.''

To judicial activists around the world, Aharon Barak is an icon. After inviting him to Harvard, Ms. Kagan called him ``a great, great judge'' who ``presided over the development of one of the most principled legal systems in the world.'' Her comments are troubling to anyone who believes in limited government and democracy and a limited role for judges. Under Barak, the Israeli court assumed extraordinary governmental power over the people of Israel. The basic democratic rights we take for granted in our country were ignored in his actions. The unelected court in Israel assumed the authority to set aside legislation and executive actions when there were disagreements about policy--not violations of the constitution, but disagreements about policy. It would alter the meaning of enacted laws and override even national defense measures.

Judge Posner wrote that Barak inhabits ``a completely different--and, to an American, a weirdly different--juristic universe.'' He goes on to say: ``What Barak created ..... was a degree of judicial power undreamed of even by our most aggressive Supreme Court justices.'' Judge Posner compared Barak's actions to ``Napoleon's taking [of] the imperial crown out of the Pope's hands and crowning himself.''

Well, is that what we want in the Court? Do we want someone who sees this judge as one of the most admirable judges in the world? Do we want to allow a disregard for the limits of governmental power to further infect our own government? Is that disrespect for the views of ordinary men and women something to which we should aspire? In other words, do unelected, lifetime judges, who are unaccountable to the people--are they entitled to this kind of power? Is this progressive idea that ``experts'' know best consistent with the American view of individual responsibility and popular sovereignty? I think not.

What is Judge Barak's judicial philosophy, as he expresses it? He has written that a judge's role ``is not restricted to adjudicating disputes'' between parties, as is required by the cases and controversies clause of our Constitution. Rather, he says:

The judge may give a statute new meaning. .....

``The judge may give a statute new meaning''--

a dynamic meaning, that seeks to bridge the gap between law and life's changing reality without changing the statute itself. The statute remains as it was, but its meaning changes, because the court has given it a new meaning that suits new social needs.

Well, I would say that Justice Barak let the cat out of the bag. In America, activist judges firmly deny this is what they are doing, but in reality, often that is exactly what they are doing--just taking plain statutes and giving the words new meaning and making them say what they would like for them to have said had they written them in that given period of time.

I believe that to the American people, those words, are offensive and strike at the heart of our democracy. I do not know how you would describe that philosophy, but I do not think it is law, not the law in the great American English tradition of law, a tradition that has attracted people all over the world because they believe they have an opportunity to achieve justice here. Again, I think it is more akin to politics, which should not be a judge's role. There is no place for politics in the courtroom.

Perhaps we should not be surprised that Ms. Kagan--President Obama's nominee--so greatly admires someone who endorses a results-oriented approach, however, because President Obama's Press Secretary, Robert Gibbs, just recently described the President himself as ``results-oriented'' when it comes to law and judging. Amazingly, Gibbs said this about President Obama's view of judging:

The president is a very pragmatic person who is far less wedded to the process and the mechanics of how you get something done and more wedded to what will the results be.

He is results-oriented, Gibbs said. What do we mean by ``results-oriented''? Results-oriented judging can only mean that a judge enters the courtroom with a preconceived idea of what the results should be, even before he has reviewed the law or heard the facts of the case. And what kinds of conclusions do they have in mind before the trial starts? Well, it is based on the judge's political views or personal feelings about parties or issues in the case. What else could they be? He or she might suggest that those views are somehow provided to them as knowing better than anyone else and that they, therefore, have a duty to impose those ``wise'' ideas on the people and the parties in the case. But I think most of us are not so willing to acknowledge judges are any wiser than anyone else. And what if the Constitution does not support such a result? The judge simply would then declare the law to mean something other than it says.

So that is the philosophy, I contend, that has been endorsed, frankly, by the President. I fundamentally disagree with his philosophy, which is also a philosophy shared by the heroes of Ms. Kagan.

This nominee has a very slim legal record, and it is difficult to evaluate that. She does have a very clear liberal political record. What legal record she has seems to be outside the concept that a judge must serve under the law and under the Constitution.

So it is fair to ask, Does she agree with her heroes? Does she agree with her President? Does she see her lifetime appointment to the Court as an opportunity to promote ideas she desires and then let the law catch up? To that question, we cannot simply accept a confirmation testimony: I will follow the Constitution. Too often, nominees have testified before the committee like Chief Justice John Roberts and gone on to rule more like Aharon Barak. Lipservice to the rule of law is not enough. Activists who have a postmodern view of the law think the Constitution really has no set meaning, there is no way to honestly interpret what it means. So it is easy for them to promise to follow the law because the law, to them, is something that can be changed. It is malleable. It is inexact. It is not finite. They can make it say what they want it to say.

So the question is, Is that the approach Ms. Kagan will take at the hearing? And is that her basic philosophy of judging? She has written that judges should be forthcoming at the confirmation process, and I think we will need to talk about those issues. It is an important confirmation. It is not a coronation. This is a lifetime appointment. This young nominee could easily serve for more than three decades. Indeed, the man she is replacing is--if she lives to his age and serves to his age, she would serve 40 years.

So I think she is entitled to fair and respectful treatment. She is entitled to have an opportunity to discuss and respond to the questions I have raised and others will raise. That is absolutely true, and we cannot use unfairness to besmirch a nominee. But we do need to know: Is this her philosophy of law? What kind of judge will she be? Isn't it true that a person's heroes tell a great deal about who they really are? Few would dispute that these heroes of hers represent three of the most well-known activist judges in the world. So I think the questions are important.

As I have said before, I will oppose--and every Senator should oppose--any
nominee who does not understand and fully accept that their duty is to serve, as the oath says, ``under the Constitution and laws of the United States.'' That is why I think it is only fair to state these concerns before the hearing. I hope my colleagues will be following it. I know our committee members are working hard. It is being a bit rushed, but we are doing our best to be ready next Monday to commence the hearing. I think it will be a good time. I look forward to it, and I hope people who see it will feel as if it was fairly conducted and beneficial not only to Senators, who must vote, but to the American public at large.

I thank the Presiding Officer and yield the floor.

BREAK IN TRANSCRIPT


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