Executive Session

Floor Speech

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Mrs. FEINSTEIN. Mr. President, I rise to speak in support of the nomination of Elena Kagan to be an Associate Justice on the Supreme Court.

Having served on the Senate Judiciary Committee now for 17 years, I have seen the impact that new Justices have on the Court, and I strongly believe these votes are among the most important we cast in this Chamber.

There is no question that the confirmation process has become heated in recent years. Outside interest groups and the 24-hour news cycle have placed far too much emphasis on sound bites, half truths, and hyperbole. But none of this should obscure the fact that these are, in fact, important votes because the stakes are high.

A Supreme Court Justice, once confirmed, will serve a life appointment on a Court that is truly foundational to our democratic system.

For over 200 years, our independent judiciary has served as a model to the world. We have watched as other countries have struggled with courts that have become beholden to political pressures or fallen subject to corruption.

I think of Pakistan, where in 2007 President Musharraf proclaimed a state of emergency and used it to suspend the country's constitution and remove justices from the supreme court; or Mexico, where corruption is so bad that in 2008 President Calderon called for a fundamental redesign of the entire judicial system.

In the United States we have guarded our judiciary, and it has served us well. Our Supreme Court has acted as a true check on government abuses, as a reliable and impartial tribunal for the resolution of private disputes, and as a final arbiter where the American people can come to seek protection of their fundamental constitutional rights.

As Justice Breyer said in a recent public address, the virtue is that ``a country of 300 million very diverse people will resolve their differences under law and not with guns on the street or through riots.''

In the context of world history, this is most impressive.

When it comes to the Supreme Court, nominations merit careful attention as well because any one Justice can have a substantial effect on the Court's rulings.

The cases that reach the Supreme Court are not easy ones. When the law is clear, a case is settled by the parties or resolved by the district courts or the courts of appeal. It is when the law is open to multiple interpretations or when constitutional values must be weighed against each other that a case is likely to reach the Supreme Court.

In these cases, decisions are not automatic. Instead, each of the nine Justices must examine the facts, study the law, and reach his or her best conclusion about what the law requires. The Court's rulings stand not just as abstract statements for the law books but binding decisions with lasting impact on the lives of the American people.

There are examples in the newspaper every day. In 2005, the Justices held that a school district in Seattle had violated the equal protection clause by using race as one of a series of factors in assigning students to schools within that district. The real impact of this will be to make it far more difficult for school administrators to maintain racial diversity in our public schools.

Another example: In a recent antitrust case--Leegin Creative Leather Products v. PSKS--the Justices put forth a new interpretation of the law that will allow manufacturers to set minimum prices for certain products. What this means for Americans is, when they go to the store, they may find that a particular electronic device or even a shampoo has the same price at every store and can never be put on sale. Legislation to overturn this decision is still pending before the Senate.

In each of these cases, Justices were divided on the law.

Five Justices agreed on the Court's ruling, but the remaining four Justices dissented and explained in vehement terms why they disagreed with their colleagues' reasoning and result. The decisions, in other words, were not formulaic.

So when I undertake my constitutional role of providing advice and consent, I do so with the understanding that every nominee to the Court is not the same, and each and every one could have a lasting impact on the future of our country.

With this in mind, I am very pleased to support the nomination of Elena Kagan to be the next Associate Justice of the United States Supreme Court.

Look at her professional record. Summa cum laude and Phi Beta Kappa from Princeton; a master's degree in philosophy from Oxford University; magna cum laude from Harvard Law School; a supervising editor of the Harvard Law Review; legal clerkships with U.S. Circuit Court Judge Abner Mikva and Supreme Court Justice Thurgood Marshall; two years at the law firm of Williams and Connolly; a professor of constitutional and administrative law at the University of Chicago; a special counsel to the Senate Judiciary Committee for the nomination of Justice Ruth Bader Ginsburg; an associate White House counsel to President Clinton; the deputy director of President Clinton's Domestic Policy Council; a professor at Harvard Law School; the first woman dean of Harvard Law School; the first woman to ever serve as the Solicitor General of the United States.

That is an amazing background. You would think she is 106 instead of a very young woman.

It is easy to see why her name has so often appeared on short lists for the Supreme Court. She is a woman of repeated firsts. If confirmed, she will be the fourth--not the first--woman to sit on the Supreme Court.

Frankly, I have been surprised to hear some of my colleagues question Elena Kagan's credentials for the Court.

Let me start with the argument made by some that her record is somehow inadequate because she lacks prior judicial experience.

It is true that all nine Justices on the current Supreme Court come directly from the U.S. Court of Appeals. But that is a historic anomaly. It has never happened before. In fact, in the history of the Court, approximately one-third of our Justices have come to the bench with no prior experience as a judge.

When the President announced this nominee, Justice Scalia, for one, said he was happy to see that she is not a Federal judge and not a judge at all. Justice Felix Frankfurter went much further, stating in a speech in 1957:

One is entitled to say, without qualification, that the correlation between prior judicial experience and fitness for the functions of a Supreme Court is zero. The significance of the greatest among the justices who have had such experience, Holmes and Cardozo, derived not from that judicial experience, but from the fact they were Holmes and Cardozo.

In my own view, judicial experience is a useful background, but it is only one of many, and it is a background that is well represented on the Court today. As a matter of fact, it is entirely represented on the Court today.

The point is this: When we examine Elena Kagan's records, we should not allow the characteristics of the current Court to make us shortsighted. In the course of American history, the Senate has confirmed Justices with a broad variety of backgrounds--Justices who were law professors, such as Felix Frankfurter; attorneys in private practice, such as Warren Burger; elected officials, such as John McKinley, Earl Warren, and James Byrnes; and over 10 percent of our Justices have--like Elena Kagan--come directly from the executive branch, with no judicial experience in between. These include Chief Justice William Rehnquist, who was Assistant Attorney General; Justice Byron White, who was Deputy Attorney General; Justice Robert Jackson and Chief Justice Harlan Fiske Stone, who were both the Attorney General of the United States; and Chief Justice John Marshall, who was the Secretary of State.

Again, these are Justices who distinguished themselves on the Court, who came directly from the political experience. In my mind, the President has made a wise choice with this nomination because, in addition to this woman's impressive brain power--and I sat there and listened to her hour after hour keep her calm, show humor, and display an impressive ability to cite cases, and even footnotes of those cases--she brings the valuable attribute of having first-hand working knowledge of all three branches of government. If confirmed, she, Justice Breyer, and Justice Thomas, will be the only Justices to share that distinction.

Take her experience with the Supreme Court itself. As a ``27-year-old pipsqueak,'' as she said before the committee, Elena Kagan had the privilege of working as a law clerk on the Supreme Court to Justice Thurgood Marshall. The job itself is prestigious, and it is impressive that Kagan was selected. The real value, however, was in giving Kagan an inside view of the Court through the eyes of one of our great Justices, the lawyer who argued Brown v. Board of Education, the first African-American Justice on the Supreme Court, and a man who brought to life the Court's most basic promise of ``equal justice under law.'' She had that experience.

As Elena Kagan said at her confirmation hearing, through Justice Marshall, she learned that our courts are ``special as compared with other branches of government. In other words, that it is the courts' role to make sure that even when people have no place else to go, they can come to the courts and the courts will hear their claim fairly. That is a valuable lesson indeed for both a young lawyer and a new Supreme Court Associate Justice.''

Today, Kagan has an equally unique perspective on the Court. As the Solicitor General, she sometimes is referred to as the ``tenth justice,'' because there is no other lawyer who interacts as frequently with the Justices. In her time as Solicitor General, she has filed hundreds of briefs and argued six cases before the Supreme Court itself. If confirmed, she will be one of only five sitting Justices who have appeared on the advocate's side of the Supreme Court bench.

Solicitor General Kagan also brings practical experience with the legislative branch. She worked in the halls of the Senate as a special counsel to the Senate Judiciary Committee for the Ginsburg nomination, and during the Clinton administration, she bore responsibility for advancing President Clinton's domestic policy agenda as the Deputy Director of the Domestic Policy Council. She served, for example, as the administration's chief negotiator for tobacco reform legislation. So she knows the ins and outs of the legislative process.

This position enabled her to experience firsthand the hard work, negotiation, collaboration, and navigation of procedural obstacles that are required to move a difficult bill through Congress.

When the Justices are called upon to interpret a statute, or determine its constitutionality, it is essential that they have some appreciation for the process by which that law came to be and the intent of Congress in writing and shaping that law. Elena Kagan knows the legislative process, and I believe that will serve our Nation well.

Finally, Elena Kagan also brings experience as a participant in the executive branch. As the Solicitor General, she has represented the U.S. Government before the Supreme Court; as an associate White House counsel, she had to advise President Clinton on the scope of Presidential powers and privileges; and as a Deputy Director of the Domestic Policy Council, she supervised the President's policy initiatives not only by advancing legislation in Congress but also in cooperation with Federal agencies.

Already, the debate has begun among legal commentators about whether Kagan's work on the executive branch will skew her rulings in key cases--we heard this earlier this morning--dealing with the scope of the President's powers with respect to indefinite detention, warrantless surveillance, or the use of force outside of a declaration of war.

The lessons of history again provide perspective here. I think of Justice Robert Jackson, a former Attorney General of the United States, who wrote an opinion that now stands as the cornerstone for all analysis--and I mean that--of limits on executive power. We have heard this quoted by virtually every nominee before the Judiciary Committee when a question of executive power is levied.

In the famous Youngstown case, in 1952, the Court was called upon to decide whether the President's authority as Commander in Chief allowed him to seize the Nation's steel mills in order to ensure sufficient wartime production to meet the Defense Department's needs for the Korean war.

In his prior role as the Attorney General of the United States, Robert Jackson had vigorously defended the President's prerogative to take steps necessary to advance the Nation's war effort. But as Justice Jackson, he took a different tack. He agreed with the majority that the President did not have the authority to seize the private steel mills, but in doing so, he set forth a compromise framework, stating that the President's power was greatest when he acted pursuant to an act of Congress, in a zone of ``twilight'' when the Congress has not spoken, and at its lowest ebb, when he acted contrary to the stated will of the Congress.

When a colleague pointed out that Justice Jackson's compromise framework differed from the position he had taken as Attorney General, he replied that a Justice does not ``bind present judicial judgment by earlier partisan advocacy.'' That is a very profound statement from a great Justice, who wrote an opinion that has stood the test of time.

I tell this story to make this point: Elena Kagan's clerkship for Justice Marshall, her work with the Congress in the 1990s, and the positions she takes now as Solicitor General cannot forecast, with any certainty, what results she will reach in cases before the Court. I think Justice Jackson is living proof of that. However, they do provide important assurance that she will appreciate the core principles and perspectives that undergird the work of each and every branch of this government.

Like Justice Jackson, this has the potential to make her a very persuasive and impressive Justice.

In sum, I believe Elena Kagan's professional background makes her superbly qualified to sit on the Supreme Court.

An excellent professional background is, of course, a necessary qualification, but a nominee must also show that he or she has the appropriate judicial temperament, has a commitment to follow the law, and brings a judicial philosophy that will not pull the Court outside of the mainstream. And I have confidence in her in each of these areas.

The Senate Judiciary Committee has received over 170,000 pages of documents spanning Kagan's entire career. She testified before us for 18 hours over a space of 3 days. She has answered over 200 additional questions for the record, and scores of letters have been sent to us regarding her qualifications. What repeatedly emerges from all of this is that Elena Kagan is a pragmatist, a problem-solver, and a conciliator.

Her time as dean of Harvard Law School--misinterpreted often--paints a vivid picture. Elena Kagan arrived at Harvard in 1999. She was selected to be dean only 4 years later. She was the first woman ever named so--a significant accomplishment in itself.

What is most important, however, is that during her time at Harvard, she developed a reputation as a steady leader who would bring all sides to the table and work to solve a problem. As described in a letter from 69 former deans supporting her nomination, she had a unique ``willingness to listen to diverse viewpoints and give them all serious consideration. She revealed a strong and consistent aptitude for forging coalitions that achieved smart and sensible solutions, often in the face of seemingly insoluble conflict.'' Quite a statement from 69 deans of law schools.

She brought conservative faculty, such as Bush administration lawyer Jack Goldsmith, to the school and rallied the faculty to come together to support them. Former Solicitor General Charles Fried described her effect this way: ``The place is like it's never been before.'' She ``managed to calm the factionalism, so it's completely disappeared.'' That is according to former Solicitor General Charles Fried. The Boston Globe stated it more simply, saying that she ``thawed Harvard law.''

This same knack for the pragmatic and drive toward consensus echoes throughout her career.

A liberal scholar from the University of Chicago has characterized her academic work this way:

She is much more of a lawyer than a partisan. She is more interested as a scholar in thinking through hard issues than advocating particular ideological or political perspectives.

Former Clinton Chief of Staff John Podesta has written that during the Clinton administration, Kagan ``distinguished herself as deeply loyal to the Constitution and the law'' and said that ``on issues ranging from adoption to religious freedom to tobacco regulation, [she] eschewed ideology in favor of practical solutions.''

Her friends, her admirers, her colleagues repeatedly describe her in those terms: a problem-solver, a conciliator, someone who brings people together even when they have very different views.

What really impresses me, though, is what we have heard from conservatives. Let me note that the very fact we have heard from these conservatives is impressive. In today's political atmosphere, lawyers take a risk when they cross party lines to support Supreme Court nominees. Key people have done so for Kagan.

Former Bush appointee to the Tenth Circuit and current Stanford law professor Michael McConnell sent us an 8-page letter outlining the reasons for his strong support for Kagan's nomination. Elena Kagan, he said, shows ``respect for opposing argument, fairmindedness, and willingness to reach across ideologic divides, independence, and courage to buck the norm.'' ``No one,'' he said, ``can foresee the future, but I would not be surprised to find that Elena Kagan, as a Justice, serves more as a bridge between the factions of the Court than as a reliably progressive vote.''

Senator Graham, my colleague on the committee, has pointed to the words of Miguel Estrada, a deeply conservative lawyer who has known Kagan for 27 years. He describes her as having ``a formidable intellect, an exemplary temperament, and a rare ability to disagree with others without being disagreeable. She is calm under fire and mature and deliberate in her judgments.''

Today, we have a divided Court--a Court in which the Justices are repeatedly split five to four on major rulings of the day. These rulings determine what kinds of gun laws legislatures can pass to protect the public safety in our cities, how much money will be spent in Federal elections, what school districts can and cannot do to maintain racial diversity in our schools, what remedy our older and women workers have when their employers discriminate against them, what the appropriate role for religion is in our public life, or how much a company can be required to pay for causing significant harm to our environment. And these Justices are split down the middle on these major questions. They cannot find compromise or agreement. Major questions of the day are adjudicated on a bare majority.

We badly need a Justice who can drive this Court toward consensus, and
I have high hopes Elena Kagan will be just such a Justice.

Her record also gives me confidence that she will follow the law and put aside any personal policy preference when deciding cases on the Court. In the course of her career, whether working on policy or on law, law has always come first. And as Solicitor General, she has proven quite clearly that she can put her personal views aside, filing, for example, a brief that defended the constitutionality of don't ask, don't tell. Although she is known to strongly disagree with that policy, she defended it and stated that the Court should let stand a First Circuit decision that upheld the policy because it properly deferred to the reasoned military judgment of the executive and legislative branches.

Finally, I believe she has set forth an appropriate judicial philosophy. In 3 days of hearings before our committee, she has revealed herself as a person who believes that judges should follow precedent, stare decisis, and exercise restraint in their rulings. She said:

[N]o judge should look at a case and say, ``Oh, I would have decided it differently; I'm going to decide it differently.'' [A] judge should view prior decisions with a great deal of humility and deference.

She told us:

The time I spent in the other branches of government remind me that [the role of the Court] must also be a modest one--properly deferential to the decisions of the American people and their elected representatives.

Hers will be a welcome voice on the Court.

I wish to take one last moment, if I may, to address questions about her actions related to military recruiting at Harvard Law School because I believe, to some extent, they have been inaccurately depicted. While each Member will have to draw his or her own conclusions about whether Dean Kagan took the wisest course, I believe it is essential that we get the facts straight.

As dean, Elena Kagan never barred military recruiters from the Harvard Law School campus. For one semester, after the U.S. Court of Appeals for the Third Circuit held that the Solomon amendment was unconstitutional, Kagan reverted to an earlier school policy that had been used for many years before she became dean. That is fact. Under that policy, the military recruited through the Harvard Law School Veterans Association but was excluded from the Office of Career Services. At all times, the military had access to students. In fact, military recruitment levels at Harvard remained steady and even increased at times during Kagan's tenure as dean.

But what is most striking to me in reviewing all of this is that although the judiciary has heard from servicemembers on both sides of this issue, every report we have received from a veteran or servicemember who actually attended Harvard at the time has been in strong support of Kagan's nomination to the Court.

Marine Corps CPT Bob Merrill graduated from Harvard Law School in 2008. He is currently serving in Afghanistan. He writes:

Kagan's positions never affected the services' ability to recruit at Harvard. Behind the scenes the dean assured that our tiny Harvard Law School Veterans Association never lacked for funds or access to facilities.

She treated the veterans at Harvard like VIPs, and she was a fervent advocate of our veterans association.

First Lieutenant David Tressler graduated from Harvard Law School in 2007 and is currently serving in Afghanistan with the U.S. Army Reserves. He wrote that ``while Dean of Harvard Law School, [Kagan] adequately proved her support for those who had served, were currently serving, and all those who felt called to serve.''

Navy Judge Advocate General Corps LT Zachary Prager graduated in 2006 and wrote that ``Dean Kagan set a standard at Harvard of respect for military servicemembers'' and that without Kagan's ``leadership and evenhandedness as Dean,'' he would not have joined the military.

Like Admiral Mike Mullen, Secretary of Defense Robert Gates, Secretary of the Navy Ray Maybus, retired General Colin Powell, myself, and many others in this Chamber, Kagan has said she personally disagrees with the don't ask, don't tell policy. And she is not alone.

At certain dark moments in our history, institutions of higher education have shown a hostility in this sense, but those contexts should not be confused.

To oppose the exclusionary policy of don't ask, don't tell is not to oppose or show hostility toward the military; it is instead to say that the time has come for all willing and able Americans to be able to serve. Like Elena Kagan, I strongly believe the criteria for military service in our country should be competence, courage, and a willingness to serve, not race, gender, or sexual orientation.

Members should draw their own conclusions about whether Kagan made the right choice as dean in returning to Harvard's old recruiting policy in 2005, but I want to be clear that nothing in her record shows any hostility toward the military or the men and women who serve our country. In fact, servicemen and women who were there at the time have come forward, and the evidence is to the contrary.

In sum, and in conclusion, I believe Elena Kagan will be a fine Justice on the U.S. Supreme Court, and I look forward to the day soon when she takes her seat as the fourth woman in history to serve on that Court. I am very proud to support her nomination.

I thank the Chair, and I yield the floor.

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