The U.S. Senate Judiciary Committee today began confirmation hearings on Solicitor General Elena Kagan, who was nominated to serve as an Associate Justice of the U.S. Supreme Court. U.S. Senate Republican Whip Jon Kyl, a member of the Judiciary Committee, made the following opening statement:
"One year ago, we sat in this same room to consider the nomination of then-Judge Sonia Sotomayor. Although I could not ultimately support her nomination, I was pleased that she testified that the role of a judge is to put aside any biases or prejudices and impartially apply the law to resolve disputes between parties.
"Judge Sotomayor explicitly rejected the "empathy' standard espoused by President Obama -- a standard where "legal process alone' is deemed insufficient to decide the so-called "hard cases'; a standard where the "critical ingredient is supplied by what is in the judge's heart.'
"Perhaps because his first nominee failed to defend the judicial philosophy that he was promoting, the President has repackaged it. Now, he says that judges should have "a keen understanding of how the law affects the daily lives of the American people. . . . [and] know that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.'
"The clear implication is that, at least in some kind of cases, judges should abandon impartiality and instead engage in results-oriented judging. Indeed, his own press secretary has confirmed the president's "results-oriented' view.
"Exactly what kind of "results' is the President looking for from his judges? Perhaps he wants judges who will ignore the serious constitutional questions surrounding his domestic legislation. Or, maybe he wants judges who will use the bench to advance "progressive' goals that have been stalled in the political process.
"Whatever the President's motivation, his view of the role of judges is wrong. Judges are to apply the law impartially, not take on social causes or cut down "powerful interests.' While they may disagree with legislative solutions to problems, it is not their prerogative to "fix' inequities.
"Part of our task is to determine whether Ms. Kagan shares President Obama's results-oriented philosophy of judging, or, instead is committed to impartiality.
"This may be a more difficult task with Ms. Kagan than with other Supreme Court nominees who have come before this Committee, most of whom have had substantial judicial records to evaluate. For instance, Judge Sotomayor issued 15,000 opinions, in a decade and a half of district and circuit court service. Ms. Kagan has never served on any bench.
"Indeed, except for a brief two-year stint in private practice and one year as Solicitor General, Ms. Kagan's entire career has been divided between academia and policy positions in the Clinton administration. Given this lack of experience practicing law, I was surprised that the American Bar Association awarded her a "well qualified' rating -- especially since the ABA's own criteria for a judicial nominee call for, among other things, "at least twelve years' experience in the practice of law.'
"Not only is Ms. Kagan's background unusual for a Supreme Court nominee, it is not clear how it demonstrates that she has, in the President's words, "a keen understanding of how the law affects the daily lives of the American people.' One recent article noted that "[Ms.] Kagan's experience draws from a world whose signposts are distant from most Americans: Manhattan's upper West side, Princeton University, Harvard Law School and the upper reaches of the Democratic legal establishment.'
"Her career in academia tells us relatively little about her views on legal issues. In 14 years as a professor, she published only nine articles, two of which were book reviews. And her tenure in the academy was marred, in my view, by her decision to punish the military, and would be recruits, for a policy -- "don't' ask, don't tell' and the Solomon amendment -- that was enacted by members of Congress and signed into law by President Clinton.
"Despite this relatively thin "paper-trail,' there are warning signs that she may be exactly the results-oriented justice President Obama is looking for. Consider, for example, the judges that Ms. Kagan says she most admires.
"Ms. Kagan has called Israeli Supreme Court Justice Aharon Barak her "judicial hero.' Justice Barak is widely acknowledged as someone "who took an activist approach to judging.' "One respected judge, Richard Posner, described Barak's tenure on the Israeli Supreme Court as "creat[ing] . . . a degree of judicial power undreamed of even by our most aggressive Supreme Court justices.'
"Ms. Kagan identified Thurgood Marshall as another of her legal "heroes.' Justice Marshall is a historic figure in many respects, and it is not surprising that, as one of his clerks, she held him in the highest regard. Justice Marshall's judicial philosophy, however, was not what I would consider mainstream. As he once explained: "You do what you think is right and let the law catch up.' He might be the epitome of a results-oriented judge.
"And, again, Ms. Kagan appears to enthusiastically embrace Justice Marshall's judicial philosophy, calling it "a thing of glory.' In 2003, Ms. Kagan wrote a tribute to Justice Marshall in which she said that, in his view, "It was the role of the courts, in interpreting the Constitution, to protect the people who went unprotected by every other organ of government -- to safeguard the interests of people who had no other champion. The Court existed primarily to fulfill this mission.' And later, when she was working in the Clinton Administration, she encouraged a colleague working on a speech about Justice Marshall to emphasize his "unshakable determination to protect the underdog -- the people whom no one else will protect.' This sounds a lot like what President Obama is saying now.
"And Ms. Kagan's work as a Supreme Court clerk for Justice Marshall contains evidence that she shares his vision of the Constitution. In many of her memos to Justice Marshall, Ms. Kagan made recommendations concerning the disposition of cases, which appear to be based largely on her own liberal policy preferences.
"For example, despite her view that one lower court decision was "ludicrous' and lacked a legal basis, Ms. Kagan nonetheless recommended that Justice Marshall vote to deny further review because, to do otherwise, Ms. Kagan wrote, would likely "create some very bad law on abortion and/or prisoners' rights.' This kind of naked political judgment appears frequently throughout Ms. Kagan's work as a judicial clerk.
"In another case, Ms. Kagan said that the Supreme Court should take the case because "it's even possible that the good guys might win on this issue.' I'm concerned about her characterization of one party as the "good guys.' Too often, it sounds to me like Ms. Kagan shares the view of President Obama and Justice Marshall that the Supreme Court exists to advance the agenda of certain classes of litigants.
"Similarly, Ms. Kagan wrote that "there is no good reason to place an exclusionary-rule issue before this Court, which will doubtlessly only do something horrible with it.'
"In yet another memo laced with political considerations, Ms. Kagan wrote, "I see no reason to let this Court get a crack at this question.' Ms. Kagan was even more explicit in a handwritten note after reviewing the Government's response in another case: "I continue to believe that they [the facts] did not [support the arrest], but I cannot see anything good coming out of review of this case by this Court.'
"Ms. Kagan explains these recommendations as merely "channeling' Justice Marshall. But the question is whether she has major differences with him and whether she sees anything wrong with taking the same approach. I have seen no evidence that is the case.
"In addition to my general concern about whether Ms. Kagan could decide cases impartially and without bias for or against certain parties, a surprising number of things in her relatively thin body of work raise substantive concerns about her views on federalism issues, free speech, national security, Second Amendment rights, gay marriage, the death penalty, religion, and abortion.
"To take just one example, I'm deeply troubled by her decision as Solicitor General to urge the Supreme Court to review and strike down an Arizona law designed to prevent employers from hiring illegal aliens. The Ninth Circuit unanimously upheld the law because federal immigration law explicitly allows states to sanction employers through their business licensing regimes. I think there are legitimate questions about whether the brief authorized by Ms. Kagan -- which flies in the face of the plain language of the law and urges the Supreme Court to strike these enforcement provisions down--was motivated by political influence at the White House and within the Department of Justice.
"In conclusion, there is ample reason for members of this committee to carefully scrutinize this nominee -- scrutiny which she invited in her now famous Chicago Law Review article 1995. Because she has no judicial record on which we can determine whether she is a "results-oriented' nominee or would approach each case as a neutral arbiter, the burden is on the nominee to show that her record demonstrates that she can be a fair and impartial justice rather than one who would have an outcome-based approach."