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Executive Session

Floor Speech

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Location: Washington, DC

Mr. GRASSLEY. I thank the Senator from Rhode Island. He is always very courteous to me.

Mr. President, I rise to take a few minutes to discuss the reasons why I am voting against Elena Kagan to be Associate Justice. An appointment to the Supreme Court is one of the most important positions an individual can hold under our Constitution. It is a lifetime position on the highest Court of the land. I take very seriously my constitutional role of advice and consent. The Senate's job is not only to provide advice and consent by confirming nominees who are intelligent and accomplished. Our job is to confirm nominees who will be fair and impartial judges, individuals who truly understand the proper role of a Justice in our system of government. Our job, then, is to confirm nominees who will faithfully interpret the law and the Constitution without personal bias or prejudice.

When the Senate makes its determination, we must carefully assess the nominee's legal experiences, record of impartiality, and commitment to the Constitution and rule of law. We need to assess whether the nominee will be able to exercise what we call judicial restraint. We have to determine if the nominee can resist the siren call to overstep his or her bounds and encroach upon the duties of the legislative and executive branches. Fundamental to the U.S. Constitution are the concepts of these checks and balances and the principle of separation of powers. The preservation of our individual freedoms actually depends on restricting the role of policymaking to legislatures rather than allowing unelected judges with lifetime appointments to craft law and social policy from the judicial bench. The Constitution constrains the judiciary as much as it constrains the legislative branch and the executive branch under the President.

When President Obama spoke about the criteria by which he would select his judicial nominees, he placed a very high premium on a judge's ability to have, in his words, ``empathy when deciding the hard cases.'' This empathy standard glorifies the use of a judge's heart and broader vision of what America should be in the judicial process. He said that individuals he would nominate to the Federal judiciary would have ``a keen understanding of how the law affects the daily lives of American people.''

So when President Obama nominated Elena Kagan to the Supreme Court, we have to assume he believed she met his ``empathy'' standard.

This empathy standard is a radical departure from our American tradition of blind, impartial justice. That is because empathy necessarily connotes a standard of partiality. A judge's impartiality is absolutely critical to his or her duty as an officer of an independent judiciary, so much so that it is actually mentioned three times in the oath of office that judges take.

Empathetic judges who choose to embrace their personal biases cannot uphold their sworn oath under our Constitution. Rather, judges must reject that standard and decide cases before them as the Constitution and the law requires, even if it compels a result that is at odds with their own political or ideological beliefs.

Justice is not an automatic or a mechanical process. Yet it should not be a process that permits inconsistent outcomes determined by a judge's personal predilections rather than from the Constitution and the law. An empathy standard set by the President that encourages a judge to pick winners and losers based on that judge's personal or political beliefs is contrary to the American tradition of justice.

That is why we should be very cautious in deferring to President Obama's choices for the judicial branch. He set that standard; we did not. We should carefully evaluate these nominees' ability to be faithful to the Constitution. Nominees should not pledge allegiance to the goals of a particular political party or outside interest groups that hope to implement their political and social agendas from the bench rather than getting it done through the legislative branch.

When she was nominated to the Supreme Court, meaning Ms. Elena Kagan, Vice President Biden's Chief of Staff, Ron Klain, assured the leftwing groups that they had nothing to worry about in Elena Kagan because she is, in his words, ``clearly a legal progressive.'' So it is pretty safe to say that President Obama was true to his promise to pick an individual who likely would rule in accordance with these groups' wishes. A Justice should not be a member of someone's team working to achieve a preferred policy result on the Supreme Court. The only team a Justice of the Supreme Court should be on is the team of the Constitution and the law.

I have said on prior occasions that I do not believe judicial experience is an absolute prerequisite for serving as a judge. There have been dozens of people, maybe close to 40, who have been appointed to the Supreme Court who have not had that experience. Solicitor General Kagan, however, has no judicial experience and has very limited experience as a practicing attorney.

Unlike with a judge or even a practicing lawyer, we do not have any concrete examples of her judicial method in action. Thus, the Senate's job of advice and consent is much more difficult. We do not have any clear substantive evidence to demonstrate Solicitor General Kagan's ability to transition from a legal academic and political operative to a fair and impartial jurist.

Solicitor General Kagan's record and her Judiciary Committee testimony failed to persuade me that she would be capable of making this crucial transformation. Her experience has primarily been in politics and academia. As has been pointed out, working in politics does not disqualify an individual from being a Justice. However, what does disqualify an individual is an inability to put politics aside in order to rule based upon the Constitution and the law. In my opinion, General Kagan did not demonstrate that she could do that during her committee testimony. Moreover, throughout her hearings, she refused to provide us with details on her views on constitutional issues.

It was very unfortunate we were unable to elicit forthcoming answers to many of our questions in an attempt to assess her ability to wear the judicial robe. She was not forthright in discussing her views on basic principles of constitutional law, her opinions of important Supreme Court cases or personal beliefs on a number of legal issues. This was extremely disappointing.

Candid answers to our questions were essential for us as Senators to be able to ascertain whether she possesses the proper judicial philosophy for the Supreme Court. In fact, her unwillingness to directly answer questions about her judicial philosophy indicated a political approach throughout the hearing. I was left with no evidence that General Kagan would not advance her own political ideas if she is confirmed to the Federal bench.

General Kagan's refusal to engage in meaningful discussion with us was particularly disappointing because of her position in a 1995 Law Review Article entitled ``Confirmation Messes, Old and New.'' In that article she wrote--and she was then Chicago Law Professor Kagan--that it was imperative that the Senate ask about, and the Supreme Court nominees discuss, their judicial philosophy and substantive views on issues of constitutional law. Specifically, then-Professor Kagan wrote:

When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.

That is in Professor Kagan's own words.

Bottom line, General Kagan did not live up to her own standard. She was nonresponsive to many of our questions. She backed away from prior positions and statements. She refused to discuss the judicial philosophy of sitting judges.

When asked about her opinions on constitutional issues or Supreme Court
decisions, she either declined to answer or engaged in an overview of the status of the law rather than a discussion of her own personal views. Because of her shallow record on the issues, this approach to the hearing was extremely troubling.

At her confirmation hearing, General Kagan told us to ``look to [her] whole life for indications of what kind of judge or Justice [she] would be.'' Well, General Kagan's record has not been a model of impartiality, as we looked at her record and her life just as she asked us to. There is no question that throughout her career she has shown a strong commitment to far-left ideological beliefs. Solicitor General Kagan's upbringing steeped her in deeply held liberal principles that at one point she stated she had ``retained ..... fairly intact to this date.'' Her jobs have generally never required her to put aside her political beliefs, and she has never seen fit to do so. Her first instinct and the instincts she has relied upon throughout her career are her liberal, progressive political instincts put to work for liberal, progressive political goals. I have no evidence that if Solicitor General Kagan were confirmed to the Supreme Court she would change her political ways or check her political instincts or goals at the courthouse door.

In fact, General Kagan gained her legal expertise by working in politics. She started out by working on Congresswoman Liz Holtzman's Senate campaign, hoping for, in her words, a ``more leftist left.'' She also worked as a volunteer in Michael Dukakis's Presidential run. The Dukakis campaign wisely put her to work at a task that is political to the core--opposition research. There she found a place where she was encouraged to use her political savvy and make decisions based upon her liberal, progressive ideology.

Moreover, while clerking for Justice Marshall, General Kagan's liberal personal convictions--rather than the Constitution and the law--seemed to be her ultimate guide when analyzing cases. General Kagan consistently relied on her political instincts when advising Justice Marshall, channeling and ultimately completely embracing his philosophy of ``do[ing] what you think is right and let[ting] the law catch up.'' Her Marshall memos clearly indicate a liberal and outcome-based approach to her legal analysis.

In several of her memos, it is apparent she had a difficult time separating her deeply held liberal views and political beliefs from the law. For example, in one case she advised Justice Marshall to deny certiorari because the Court might make ``some very bad law on abortion.'' In another case, she was ``not sympathetic'' that an individual's constitutional right to keep and bear arms had been violated. In essence, her judicial philosophy was a very political one.

During her tenure at the White House, Solicitor General Kagan worked on a number of highly controversial issues, such as abortion, gun rights, campaign finance reform, and the Whitewater and Paula Jones scandals. She herself described her work for President Clinton as being primarily political in nature.

In a 2007 speech, she said:

During most of the time I spent at the White House, I did not serve as an attorney, I was instead a policy adviser. ..... It was part of my job not to give legal advice, but to choose when and how to ask for it.

Her documents from the Clinton Library prove just that. She forcefully promoted far-left positions and offered analyses and recommendations that were far more political than legal in nature. For example, during the Clinton administration, General Kagan was instrumental in leading the fight to keep partial-birth abortion on the books. Documents show that she boldly inserted her own political beliefs in the place of science. Specifically, she redrafted language for a nonpartisan medical group to override scientific findings against partial-birth abortion in favor of her own extreme views. Despite the lack of scientific studies showing that partial-birth abortion was never necessary and her own knowledge that ``there aren't many [cases] where use of the partial-birth abortion is the least risky, let alone the `necessary,' approach,'' Solicitor General Kagan had no problem intervening with the American College of Obstetricians and Gynecologists to change their own policy statement.

After her intervention, this doctor group's statement no longer accurately reflected the medically supported position of the obstetricians and gynecologists. Rather, the group's statement now said that partial-birth abortions should be available if the procedure might affect the mother's physical, emotional or psychological well-being. The reality is that General Kagan's change was not a mere clarification. It was, in fact, a complete reversal of the medical community's original statement.

Other documents show that Solicitor General Kagan also lobbied the American Medical Association to change a statement it had issued on partial-birth abortion. These documents demonstrated her ``willingness to manipulate medical science to fit the Democratic Party's political agenda on a hot button issue of abortion.''

During her hearing, General Kagan refused to admit she participated in the decisionmaking process of what language the gynecologists would use in their statement on partial-birth abortion. The documents present a very different picture. Although she stated that there was ``no way she could have intervened with the ACOG,'' she did exactly that. Instead of responding to a legitimate inquiry in an open and honest manner, she deflected the question and gave, at best, nonresponsive answers.

In addition, Solicitor General Kagan worked on a number of initiatives to undermine second amendment rights. She was front and center of the Clinton administration's anti-second amendment agenda. She collaborated closely with Jose Cerda on the administration's plan to ban guns by ``taking the law and bending it as far as we can to capture a whole new class of guns.'' After the Supreme Court in Printz v. U.S. found parts of the Brady antigun law to be unconstitutional, she endeavored to find legislative and executive branch responses to deny citizens' second amendment rights.

Even in academia, Solicitor General Kagan took steps and positions that were based on her strongly held personal beliefs rather than an evenhanded reading of the law. As dean of Harvard Law School, she actively defied Federal law by banning military recruiters from campus while the Nation was at war. Prior to her appointment as dean, the Department of Defense had made clear to Harvard that the school's previous recruitment policy was not in compliance with the Solomon Amendment, so Harvard did what Harvard should have done: changed its policy to abide by the Federal law. But when the Third Circuit, which does not include Massachusetts, ruled on the issue, then-Dean Kagan immediately reinstituted the policy barring the military from the Harvard campus. She took this position because she personally believed the military's longstanding policy of don't ask, don't tell, in her words, was ``a profound wrong--a moral injustice of the first order.'' She claimed her policy was equal treatment. However, the Air Force believed the policy was playing games with its ability to recruit. The Army believed the policy resulted in it being stonewalled. Then-Dean Kagan was entitled to her opinion, but--no different than anybody else in this country--she was not free to ignore the law. The Solomon Amendment required that military recruiters be allowed equal access to the university as any other recruiter.

The bottom line is that then-Dean Kagan refused to follow the law and instead interpreted that law in accordance with her personal beliefs. The Supreme Court unanimously rejected her legal position on the Solomon Amendment and upheld our military.

I am concerned that Solicitor General Kagan will continue to use her personal politics and ideology to drive her legal philosophy if she is confirmed to the Supreme Court, particularly since her record shows she has worked to bend the law to fit her political wishes.

Further, I am concerned with the praise Solicitor General Kagan has lavished on liberal jurors who promote activist philosophies such as those of Israeli Judge Aharon Barak. Judge Barak is a major proponent of judicial activism who believes judges should ``bridge the gap between law and society.'' He also went on to say that we ought to use international law to advance a social and political agenda on the bench.

At a Harvard law event attended by then-Dean Kagan, Judge Barak noted with approval cases in which ``a judge carries out his role properly by ignoring the prevalent social consensus and becoming a flag bearer of new social consensus.'' When I asked General Kagan if she endorsed such an activist judicial philosophy, she replied that Judge Barak's philosophy was something ``so different from any that we would use or want to use in the United States.'' But that contradicts her previous statement about Judge Barak that he is a ``great, great judge'' who ``presided over the development of one of the most principled legal systems in the world.'' I am not able to ascertain if Solicitor General Kagan agrees with Judge Barak or if she rebukes his positions, so I am left to believe she endorses the judicial method of what she calls her ``judicial hero'' and his views on judicial restraint or lack thereof. I cannot support a Supreme Court nominee whose judicial philosophy endorses judicial activism as opposed to judicial restraint.

With respect to the second amendment, General Kagan testified that the Heller and McDonald cases were binding precedent for the lower courts and due all the respect of precedent. However, I worry that, if confirmed, her deeply engrained personal belief will cause her to overturn this precedent because she does not personally agree with those decisions or the constitutional right to bear arms. At the hearing, Solicitor General Kagan was unwilling to discuss her personal views on the second amendment or whether she believes the right to bear arms is what it is today--a fundamental right. When I asked her about her thoughts on the issue, she simply replied that she ``had never thought about it before.'' I also asked her whether she believed self-defense was at the core of the second amendment. She could only respond: ``I have never had the occasion to look into the history of the matter.'' As a former constitutional law professor both at Chicago and Harvard, Solicitor General Kagan's response ought to be troubling to anybody who heard it.

A key theme in the U.S. Constitution reflects the important mandate of the Declaration of Independence. It is the recognition that the ultimate authority of a legitimate government depends on the consent of a free people, the ``consent of the governed.'' As Thomas Jefferson wrote:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men deriving their just powers from the consent of the governed.

As former Attorney General Edwin Meese explains:

That all men are created equal means that they are equally endowed with unalienable rights. ..... Fundamental rights exist by nature, prior to government and conventional laws. It is because these individual rights are left unsecured that governments are instituted among men.

So I am concerned that Elena Kagan refused to agree with my comments about the Declaration of Independence--that there are such things as inalienable rights and if government does not give, government cannot take away.

Similarly, Senator Coburn asked General Kagan if she agreed with William Blackstone's assessment about the right to bear arms and use those arms in self-defense. She replied:

I don't have a view on what are natural rights, independent of the Constitution.

If you don't have a view about rights that existed before the Constitution was ever written, do you have the knowledge to be a Supreme Court Justice?

So this is concerning to me because, as one commentator stated:

A legal scholar with no take on such a fundamental constitutional topic [of which individual rights qualify as natural or inalien in character] seems at best disingenuous and at worst, frightening. How can one effectively analyze and apply the Constitution without a firm grip on what basic freedoms underlie our founding documents and national social compact? How can one effectively understand the original intent of the Framers without any opinion on the essential place of certain liberties within the American legal framework?

Bottom line: The fact that General Kagan refused to answer our questions about her personal opinions on the right to bear arms leads me to conclude that she does not believe people have a natural right of self-preservation, unrelated to the Constitution.

I am concerned about Solicitor General Kagan's views on our constitutional right to bear arms not only because of her anti-second amendment work during the Clinton administration but also in light of her memo in the Sandidge case when she clerked for Justice Marshall. In her memo, she summarily dismissed the petitioner's contention that the District of Columbia's firearm statute violated his second amendment right to keep and bear arms. Instead of providing a serious basis for her recommendation to deny the certiorari, her entire legal analysis of this fundamental right consisted of one sentence: ``I am not sympathetic.''

A further basis for my concerns about whether she will protect or undermine the second amendment if she is confirmed is the decision of the Office of Solicitor General under her leadership not to even submit a brief in the second amendment McDonald case. Solicitor General Kagan's record clearly shows she is a supporter of restrictive gun laws and has worked on numerous initiatives to undercut second amendment fundamental rights. So, not surprisingly, as Solicitor General, she could not find a compelling Federal interest for the United States to submit a brief in a case that dealt with fundamental rights and the second amendment of the Constitution. This was a case that everyone knew would have far-reaching effects. It is apparent that political calculations and personal beliefs played a role in Solicitor General Kagan's decision not to file a brief in this landmark case to ensure that constitutional rights of American citizens were protected before the Supreme Court.

With respect to the Constitution's commerce clause, Solicitor General Kagan was asked whether she believed there are any limits to the power of the Federal Government over the individual rights of American citizens.

Unfortunately, her response didn't assure me that, if confirmed, she would ensure that any law Congress creates does not infringe on the constitutional rights of our citizens. Specifically, Senator Coburn asked her whether she believed a law requiring individuals to eat three vegetables and three fruits a day violated the commerce clause. Though pressed on this and other lines of questioning on the commerce clause, she was unwilling to comment on what would represent appropriate limits on Federal power under the Constitution--and probably the commerce clause has been used more than any specific power of Congress for greater control of the Federal Government over State and local governments or over the economy and probably depriving individual rights in the process.

I am not sure Solicitor General Kagan understands that ours--meaning our government--is a limited government and that the restraints on the Federal Government's power are provided by the Constitution and the concept of federalism upon which our Nation is founded. The powers of the Federal Government are explicitly enumerated in article I, section 8 of the Constitution. Further, the 10th amendment provides that the powers not expressly given to the Federal Government in the Constitution are reserved to the States.

The Founding Fathers envisioned that our government would be constitutionally limited in protecting the fundamental rights of life, liberty, and property and that the laws and policies created by the government would be subject to the limits established by the Constitution. As James Madison wrote in Federalist No. 45, ``The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State government are numerous and indefinite.''

I am not convinced the Solicitor General appreciates that there are express limits the Constitution places on the ability of Congress to pass laws. I am not persuaded by her nonanswers to our commerce clause questions that she won't be a rubberstamp for unconstitutional laws that threaten an individual's personal freedoms.

With respect to the institution of marriage, I am concerned with Solicitor General Kagan's ability to disregard her own personal beliefs in order to defend the Defense of Marriage Act. Under her supervision, the United States filed a brief stating that ``the Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal.'' At the hearing, she refused to say whether this was an appropriate statement to make considering that it is the duty of the Solicitor General to vigorously defend the laws of the United States. How are we to believe she will uphold a law as a Supreme Court Justice when she disagrees with that law? When she was tasked as the government's lawyer to vigorously defend the law, clearly she put her personal politics and beliefs first. It is obvious that supporting the repeal of a law is not vigorously defending that law.

There are other occasions where General Kagan's personal beliefs rather than the law appear to have guided her decisions as Solicitor General. For example, with respect to her handling of the lawsuits attempting to overturn the don't ask, don't tell policy, she didn't file an appeal in the Witt v. Department of the Air Force case to uphold the constitutionality of the law, even though there was a split in the circuit courts on this issue. I have already discussed Solicitor General Kagan's actions at Harvard Law and how she thwarted our military's recruitment efforts because of her deeply held views against the don't ask, don't tell policy. I cannot imagine that her personal opinions on this matter did not play a role in decisionmaking at the Solicitor General's Office with respect to the Witt case.

I am also concerned about Solicitor General Kagan's views on property rights. The fifth amendment states that the government ``shall not take private property rights for public use without just compensation.'' In 2004, the Supreme Court took an expansive view of the words ``public use'' in Kelo v. City of New London, allowing the government to take private property so that it could be transferred to another person promoting economic development. At the hearing, Solicitor General Kagan refused to comment on whether she believed the Court had correctly interpreted the text of the Constitution in the Kelo case. She also did not elaborate on any limits to the government's ability to take private property. I am concerned that she does not agree that the ruling in Kelo undermines citizens' property rights contained in the Constitution.

Solicitor General Kagan's view of the role of international law is disturbing. At the hearing, she stated that a Justice could look to international law to find ``good ideas'' when interpreting the U.S. Constitution and our laws. However, when I pressed her on which countries a Justice should look to in order to find those ``good ideas,'' she refused to answer.

I am unaware of how international law can help us better understand our great Constitution. That is because international law should not be used to interpret our Constitution. When we begin to look to international law to interpret our own Constitution, we are at a point then where the meaning of the U.S. Constitution is no longer determined by the consent of the governed.

The importance Solicitor General Kagan places on international law is made abundantly clear by her actions as dean of Harvard, when she implemented a curriculum mandating that all first-year law students take international law. She said that the first year of law school is the ``foundation of legal education,'' forming lawyers' ``sense of what the law is, its scopes, its limits, and its possibilities.'' Yet, U.S. constitutional law, the class that teaches the founding document of our legal system--a class that almost every other law school in the country believes first-year students should have--is not a mandatory first-year course at Harvard Law.

I don't disagree that it is helpful for students to understand international law, but I question why it should be a first-year requirement and thus mandatory to graduate--especially when U.S. constitutional law is not required to graduate from Harvard Law School at all--yes, hard to believe; a student can graduate from Harvard Law without having to take a single constitutional law class.

When General Kagan was asked about this, she answered:

Constitutional law should primarily be kept in the upper years, where students can deal with it in a much more sophisticated and in-depth way.

This may seem reasonable, but it does not address why a student is never required to take a constitutional law class to graduate. Because, as dean, she never saw the need to make constitutional law a requirement to graduate, then I am led to believe Solicitor General Kagan believes international law is more important than U.S. constitutional law. This is remarkable--or maybe I should say it is shocking--considering that the Constitution of the United States is our most fundamental law.

I am deeply concerned then that if confirmed to the Supreme Court, General Kagan will put her own strongly held personal views above that of the Constitution and the law.

Throughout her life, Solicitor General Kagan's background has allowed her to work without having to check her political and ideological views. Her experiences throughout her life have allowed her to indulge, reinforce, and ultimately submit her deeply ingrained liberal beliefs. In my opinion, her record strongly suggests she will not be able to act in an unbiased manner as a Justice.

Her answers and evasions to our questions at the Judiciary Committee hearing also raise serious concern about her ability to set aside her personal political goals when interpreting the Constitution. I am convinced that once confirmed to the Court, her ``finely tuned political antenna'' and her ``political heart'' will drive her judicial method, rather than judicial restraint.

At the hearing, General Kagan tried to distance herself from her Oxford thesis, where she embraced judicial activism. In that thesis, she wrote that ``it is not necessarily wrong or invalid'' for judges to try to ``mold and steer the law in order to promote certain ethical values and achieve certain social ends.'' Our great American tradition and the U.S. Constitution soundly reject the notion of judges overstepping their constitutional role by implementing their personal, political, and social goals from the bench. I am not convinced that, if confirmed, General Kagan will actually be able to resist the temptation to do that. That is because I believe her judicial philosophy is really nothing more than a political philosophy. This being the case, I am not at all convinced she will be able to apply the law impartially and not be a rubberstamp for the President or the leftwing interest groups' political and social agenda.

Solicitor General Kagan acknowledged that it is ``difficult to take off the advocate's hat and put on the judge's hat.'' Yet she could not show us that she had the ability to make the transition from an academic and political operative to what we believe ought to be a fair and impartial jurist. Her testimony did not disprove her far-left record or demonstrate she would not let her political views dominate her approach to the law. I am not persuaded Solicitor General Kagan will be able to overcome that difficulty and transition into an unbiased judge, so I will vote no on her confirmation.

I yield the floor.

BREAK IN TRANSCRIPT


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