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Public Statements

Executive Session

Floor Speech

Location: Washington, DC


Mr. KYL. Mr. President, Elena Kagan is intelligent, well spoken, personable, and schooled in the law. She is skilled in the art of argument, perhaps to a fault. Ignoring her own advice in the now famous University of Chicago Law Review article, she did not testify meaningfully before the Judiciary Committee, concealing and disguising her views and playing the same game of ``hide the ball'' as some who went before her, albeit with more skill. Probably because she criticized the practice so directly, many expected her to set a different standard.

Others have asked whether Judiciary Committee hearings have been rendered largely free of substance and what, if anything, can be done about it. The former Judiciary Committee chairman, Arlen Specter, who lamented that Ms. Kagan, during her testimony, had not ``answered much of anything,'' went on to say this:

It would be my hope that we could find some place between voting no and having some sort of substantive answers. But I think we are searching for a way how Senators can succeed in getting substantive answers, as you advocated in the Chicago Law Review, short of voting no.

I confess that, similar to Senator Specter, I don't know how we can force nominees to be forthcoming except through our votes.

To be clear, my threshold for supporting a nominee does not require answering how one would vote on issues sure to come before the Court, nor necessarily expressing agreement or disagreement with decisions or Court opinions. It is possible to learn much about a nominee's approach to judging without committing one to a specific position in future cases. What we should expect, however, is candor and a willingness to honestly discuss background and general constitutional principles, approaches to judging and writings and matters within the nominee's background that bear on the nominee's suitability for the bench.

In explaining why I could not vote for now-Justice Sotomayor, I said I thought she was disingenuous with the Judiciary Committee. Obviously, reaching such a conclusion precludes support, notwithstanding other qualifications for the position. Reluctantly, after analysis of her testimony, weighed with her past writings, statements, and actions, I have reached the same conclusion regarding Elena Kagan.

Exhibit A is her insistence on redefining her position on military recruiting on Harvard campus. Her ``separate but equal'' defense and attempt to downplay the steps she took to undermine the legal policy of don't ask, don't tell were, ultimately, unbelievable. It is almost unfathomable, for example, that someone with Ms. Kagan's considerable legal acumen could have, as she asserted, always thought we were acting in compliance with the Solomon amendment.

Ms. Kagan tried to convince the Judiciary Committee that her actions against the military were a justifiable response to a policy she viewed as discriminating against homosexuals. But as Senator Sessions noted, her stand against homosexual discrimination was not universal. She did not speak out, for example, when Harvard accepted $20 million from a member of the Saudi royal family to establish a center for the study of Sharia law, even though under Sharia law ``sexual activity between two persons of the same gender is punishable by death or flogging.'' Her decision to punish the military for a policy adopted by Congress is especially perplexing, given her failure to express concern over or take action against the establishment of a center to promote a legal system linked to the abuse of homosexuals, women, and others.

Exhibit B is her astonishing legal definition of what she meant in her effusive praise for Justice Marshall's vision of the role of the Court, presumably to avoid the obvious conclusion that she agreed with his activist approach to judging. Justice Marshall had an enormous influence on our jurisprudence, starting with his advocacy before--and most especially with--Brown v. Board of Education. But no serious student would argue that he didn't try to push the law as far as he could in furtherance of his philosophy.

Indeed, consider the comments of another former Marshall clerk, liberal law professor Cass Sunstein, who now serves in the Obama administration, who has said this:

A serious commitment to Marshall's vision of constitutional liberty would entail an extraordinary judicial role, one for which courts are quite ill suited.

He has also acknowledged:

Even if the best substantive theory calls for something like Marshall's vision, institutional considerations would argue powerfully against it.

Ms. Kagan's attempt to define Justice Marshall's philosophy as meaning only that he wanted everyone to have equal access to the courts is--there is no other word for it--disingenuous.

Because Ms. Kagan apparently embraces his philosophy but feared public acknowledgment of that would confirm the concern that she would be a results-oriented judge, she fudged. In doing so, she confirmed the suspicion and compounded the problem with deceptive testimony.

Exhibit C is the explanation of several of her bench memos to Justice Marshall, insisting they did not contain her views but were merely a channeling of his. Ms. Kagan offered this explanation of her memo categorizing litigants as ``good guys'' and ``bad guys,'' another memo stating that the government was ``for once on the side of the angels,'' and a memo expressing fear that the Court might ``create some very bad law on abortion and/or prisoners' rights.'' Reading these memos, one gets the sense that Ms. Kagan was not simply channeling her boss but was instead expressing her own personal policy views on matters before the Court and that they had as much to do with who the litigants were as what the issues were.

Ms. Kagan also attempted to recast her praise of Israeli Supreme Court Justice Aharon Barak, who, in the words of the Associated Press, is widely acknowledged as someone who took an activist approach to judging. Well, that is exhibit D. Judge Richard Posner described Judge Barak's history on the Israeli Supreme Court as ``creating a degree of judicial power undreamed of even by our most aggressive Supreme Court justices.''

Under his leadership, the Israeli Supreme Court aggrandized its own power far beyond what even many of those on the left would view as acceptable in America. To cite one example of Justice Barak's judicial philosophy, he wrote a judge's role ``is not restricted to adjudicating disputes in which parties claim that their personal rights have been violated'' but rather ``to bridge the gap between law and society.''

Well, bridging gaps, clearly, and using the law to address societal problems is not the job of the courts. That is a political approach.

Ms. Kagan claimed, during her hearing, that her praise for Justice Barak had nothing to do with his leftwing judicial philosophy. But an examination of her statements tells a different story. In 2002, Ms. Kagan praised Aharon Barak for ``presiding over the development of one of the most principled legal systems in the world.''

In 2006, she again heaped professional praise on Justice Barak, calling him her ``judicial hero.'' Ed Whelan, who is a noted legal commentator, summarized this event well:

Kagan begins by referring to the portraits of four ``great justices'' with whom Harvard Law School has been associated--Brandeis, Holmes, Brennan, and Frankfurter. But, she says, ``the Harvard Law School association of which I'm most proud''--more proud, that is, than of the associations with Brandeis, Holmes, Brennan, or Frankfurter--``is the one we have with President Barak of the Israeli Supreme Court.

And then she continued:

I told President Barak, and I want to repeat in public, that he is my judicial hero. He is the judge or justice in my lifetime whom [sic], I think, best represents and has best advanced the values of democracy and human rights, of the rule of law and of justice.

During her confirmation hearing, Ms. Kagan, under oath, testified that she admired Justice Barak for his role in:

..... creating an independent judiciary for Israel. ..... not for his particular judicial philosophy, not for any of his particular decisions.

That testimony cannot be squared with her public declaration that Justice Barak ``is the judge or justice in my lifetime whom [sic], I think, best represents and has best advanced the values of democracy and human rights, of the rule of law and of justice.''

Exhibit E is Ms. Kagan's answer to whether she is a legal progressive. Her statements, again, were designed to cloud her views. Vice President Biden's Chief of Staff, Ron Klain--who served as chief counsel of the Senate Judiciary Committee, Chief of Staff to Attorney General Reno, and Chief of Staff to Vice President Gore--has known Ms. Kagan as far back as 1993, when they worked together on the Ginsburg hearings. At Ms. Kagan's hearing, Senator Sessions pointed out that after Ms. Kagan was nominated, Mr. Klain said:

Elena [Kagan] is clearly a legal progressive. I think Elena is someone who comes from the progressive side of the spectrum. She clerked for Judge Mikva, clerked for Justice Marshall, worked in the Clinton administration, worked in the Obama administration. I don't think there's any mystery of the fact that she is, as I said, of more of the progressive role than not.

Senator Sessions then asked Ms. Kagan:

Do you agree with the characterization that you're a legal progressive?

She replied:

I honestly don't know what that label means.

So Senator Sessions pressed Ms. Kagan:

I'm asking about his firm statement that you are a legal progressive, which means something. I think he knew what he was talking about. He's a skilled lawyer who's been in the midst of the great debates of this country about law and politics, just as you have. And so I ask you again: Do you think that is a fair characterization of your views? Certainly, you don't think he was attempting to embarrass you or hurt you in that process.

She again dodged with an answer that strains credulity.

I love my good friend, Ron Klain, but I guess I think that people should be allowed to label themselves. And that's--you know, I don't know what that label means and so I guess I'm not going to characterize it one way or the other.

So a nominee to the highest Court in the land and a former dean of one of the Nation's most prestigious law schools insists that she doesn't know what the term ``legal progressive'' means.

But later in the hearing, Senator Graham mentioned that Greg Craig, President Obama's first White House Counsel, had praised Ms. Kagan. Mr. Craig said:

[Elena Kagan] is largely a progressive in the mold of Obama himself.

So Senator Graham asked:

Would you consider them, your political views, progressive?

Then Ms. Kagan acknowledged that, yes, her ``political views are generally progressive.''

It is hard to believe Ms. Kagan knows what a political progressive is but not a legal progressive.

Exhibit F: Her attempt to redefine her views in the letter sent to Judiciary Committee on November 14, 2005, in which she objected to the Graham-Kyl-Cornyn amendment dealing with treatment of enemy detainees. Her characterization of our approach as being similar to the ``fundamentally lawless'' actions of ``dictatorships'' was clearly, I believe, injudicious and revealed the fervor of her position, much like her characterization of the don't ask, don't tell policy as ``a moral injustice of the first order,'' and it could suggest a viewpoint that she would have a hard time laying aside if similar questions ever came before her as a Supreme Court Justice.

Her attempt to distance herself from the obvious application of her views to places other than Gitmo--obvious because her letter bemoaned the ``serious and disturbing reports of the abuse of prisoners in Guantanamo, Iraq and Afghanistan''--and issues other than conviction and sentencing--even though her letter stated that our amendment ``unfortunately'' would ``prohibit challenges to detention practices, treatment of prisoners, adjudications of their guilt and their punishment''--suggests either that she was uncomfortable defending her position or she wanted to preserve her right to sit on such cases in the future or both. The attempt to obscure positions she had previously stated was, I believe, an attempt to run away from those positions and mislead the committee.

Exhibit G: Ms. Kagan's doublespeak on the question of same-sex marriage. Prior to her confirmation as Solicitor General, when she was not restricted, as judicial nominees are, in her ability to comment on issues that may come before the courts, Senator Cornyn asked Ms. Kagan a direct question about her personal views:

Do you believe that there is a fundamental constitutional right to same-sex marriage?

Her answer then seemed clear. She wrote:

There is no Federal constitutional right to same-sex marriage.

But at the hearing, when I asked Ms. Kagan to confirm her views on this subject, she distorted both Senator Cornyn's question and her answer. She told me Senator Cornyn had asked whether she could ``perform the role of the Solicitor General'' and vigorously defend DOMA, given her opposition to don't ask, don't tell. When I pointed out that Senator Cornyn's question was about a constitutional right to same-sex marriage, not DOMA, Ms. Kagan then asserted that her answer to Senator Cornyn--that ``there is no Federal constitutional right to same-sex marriage''--intended to convey that she ``understood the state of the law and accepted the state of the law.'' Having reinterpreted her previous answer, she then told me that, as a Supreme Court nominee, it would not be ``appropriate'' for her to share her personal views on the subject, since such a case may come before the Court.

It strikes me that Ms. Kagan was, at the time of her nomination to be Solicitor General, trying to create an impression--apparently a false one--that she did not personally believe the Constitution could be read to include a right to same-sex marriage.

That leads to Exhibit H: her involvement, while serving as Solicitor General, in a case concerning the constitutionality of the Defense of Marriage Act, DOMA.

When nominated for the job of Solicitor General, Ms. Kagan emphasized in her opening statement the ``critical responsibilities'' that the Solicitor General owes to Congress, ``most notably the vigorous defense of the statutes of this country against constitutional attack.'' Later, Ms. Kagan reiterated that she could represent the interests of the United States ``with vigor, even when they conflict with my own opinions. I believe deeply that specific roles carry with them specific responsibilities and that the ethical performance of a role demands carrying out these responsibilities as well and completely as possible.''

Ms. Kagan even cited former Solicitor General Ted Olson's defense of the campaign finance laws as an example of the way a Solicitor General should approach the job. She said, ``I know that Ted Olson would not have voted for the McCain-Feingold bill, but he ..... did an extraordinary job of defending that piece of legislation....... And that's what a solicitor general does.''

Yet, there is substantial reason to doubt that Ms. Kagan genuinely carried out her obligation to ``vigorously defend'' a Federal statute in district court, the Defense of Marriage Act. In response to questions at her Supreme Court hearing, Ms. Kagan acknowledged that she was involved in two district court cases involving DOMA. Her personal involvement in these cases was itself unusual as she admitted in response to written questions: ``In the normal course, the [Solicitor General's] Office does not participate in district court litigation.''

Her involvement would not have necessarily raised concerns were it not for the position that the government advocated in the cases. In the first case, Smelt v. United States, the Department of Justice filed a brief that, as part of its so-called ``defense'' of the DOMA statute, admitted to the court that ``this Administration does not support DOMA as/matter of policy, believes that it is discriminatory, and supports its repeal.'' How can a lawyer mount a ``vigorous'' defense of a statute while declaring the statute to be discriminatory? But it gets worse. The Justice Department's brief also asked the court to ignore one of the strongest arguments in support of DOMA--namely that traditional marriage serves as a valuable vehicle for encouraging responsible procreation and childbearing. The brief asserted that the government ``does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing.''

It is clear that the Justice Department's brief, which was supposed to be filed in support of the DOMA statute, in fact undercut the law's constitutionality. As one legal scholar and proponent of same-sex marriage said about the Justice Department's argument:

This new position is a gift to the gay-marriage movement, since it was not necessary to support the government's position. It will be cited by litigants in state and federal litigation, and will no doubt make its way into judicial opinions. Indeed, some state court decisions have relied very heavily on procreation and child-rearing rationales to reject SSM [same-sex marriage] claims. The DOJ is helping knock out a leg from under the opposition to gay marriage.

The Smelt case was later dismissed by the district court for other reasons. And that brings us to the second DOMA case in which Ms. Kagan was involved--Gill v. Office of Personnel Management. In Gill, the Justice Department again offered the same half-hearted defense of DOMA and repudiated its strongest legal arguments. This time, however, the district court seized on the Justice Department's rejection of the procreation and child-bearing rationales and found that DOMA was unconstitutional. Ed Whelan, the noted legal commentator and a former principal deputy of the Office of Legal Counsel, has explained that the decision in Gill ``would be ridiculous but for DOJ's abandonment of Congress's stated justifications for DOMA. Under proper application of the very deferential `rational basis' review, for example, it would be enough to recognize that it would have been reasonable for Congress in 1996 to regard traditional marriage as a valuable vehicle for encouraging responsible procreation and childbearing.''

Although Ms. Kagan admitted being involved in both Smelt and Gill, she refused to tell us her role in the deliberations. In response to written questions, Ms. Kagan did admit that her participation in Smelt was ``sufficiently substantial'' that she would recuse herself should the case come before the Supreme Court. But this promise itself was disingenuous because the Smelt case had already been dismissed, so there was no chance that it would come before the Supreme Court. On the other hand, the Gill case may very well make its way to the Supreme Court, but Ms. Kagan did not promise to recuse herself from participating in it, despite her involvement in formulating the Justice Department's flawed defense of DOMA in the case.

We will likely never know what Ms. Kagan's advice was in these cases. What we do know is that Ms. Kagan has a history of ignoring the law when it conflicts with the gay rights agenda. We also know that she took the unusual step of getting involved in these district court cases challenging DOMA. And we know that the Justice Department went out of its way to abandon one of the fundamental rationales for the DOMA statute, which resulted in a court, for the first time ever, ruling that DOMA was unconstitutional. On the basis of these facts, I believe that any reasonable observer would question whether Ms. Kagan kept her promise to us that she would ``vigorously defend'' Federal statute as Solicitor General.

Exhibit I is her dubious explanation of why, in another case that she handled as Solicitor General, she declined to appeal the Ninth Circuit's adverse ruling in Witt v. Department of the Air Force, a case challenging the constitutionality of the government's don't ask, don't tell statute. At her hearing, Ms. Kagan claimed that allowing the Ninth Circuit decision to stand, and accepting a remand and trial in district court, would provide the Supreme Court with a ``fuller record'' and would help the government ``show what the Ninth Circuit was demanding that the government do'' to defend don't ask, don't tell.

But a review of the Ninth Circuit opinion and the record in the case shows that Ms. Kagan's explanation was disingenuous. The Ninth Circuit itself had already said what the government would need to prove for the Federal law to survive--there was no need to develop a ``fuller record'' or seek further clarification from the courts.

Ms. Kagan's decision to let the case return to the district court ensured that members of the military would be subjected to invasive and humiliating trials in the Witt case and in all other challenges against don't ask, don't tell--trials in which soldiers would be compelled to testify against their comrades, discuss their views of a fellow soldier's sexual practices, and watch as the unit's personnel files become fodder for lawyers trying to condemn what is supposed to be a military-wide policy. The government rightly argued before the trial court that such trials are guaranteed to destroy unit cohesion--the very thing that Congress sought to protect when it passed the don't ask, don't tell statute. And the trial court records show that Kagan knew in advance that the trial process would harm the military's interests. But she decided to thrust the government into exactly the position the military's lawyers most wanted to avoid, perhaps to keep in place, and insulate from Supreme Court review, a Ninth Circuit ruling that places don't ask, don't tell policy in jeopardy.

In addition to my concerns that Ms. Kagan was less than candid with the Judiciary Committee, I am also concerned about her leftist ideology and the potential it will influence her judging. I will discuss three areas of concern.

First, is her defense of the brief filed in Chamber of Commerce v. Candelaria. It takes a clever lawyer to argue that the Court should take this immigration case, but not Lopez-Rodriguez v. Holder on the traditional reasons for granting certiorari. In Candelaria, she asked the Supreme Court to strike down an Arizona law that permits the State to suspend or revoke the business licenses of companies that knowingly employ illegal aliens. She did this even though Federal law expressly authorizes States to enforce immigration laws ``through licensing'' and even though the courts that have considered the issue have determined that States could do precisely what Arizona did. Yet, in Lopez-Rodriguez, another immigration case, she refused to appeal a decision by the Ninth Circuit that permits ordinary deportation hearings to be bogged down by long legal fights over the admissibility of clear evidence that a person is illegally here. Unlike Candelaria, the Ninth Circuit's decision in Lopez-Rodriguez was in conflict with the decisions of other courts--including the Supreme Court--involved a significant constitutional issue. It is difficult not to conclude that Ms. Kagan's actions in these two cases were driven less by the law, and more by political expediency.

My second concern about ideology is that Ms. Kagan has shown she may hold a limited reading of the second amendment, even after the Heller and McDonald cases. When asked whether the right to bear arms was a ``fundamental right,'' Ms. Kagan said, ``I think that that's what the court held in McDonald.'' She also said that the holding was ``[g]ood precedent going forward.'' Of course, there is a record of nominees describing the holding of a case and proclaiming that it is ``good precedent,'' only to vote to overturn or distinguish that precedent once they ascend to the bench. Justice Sotomayor did just that on this issue.

But we need not rely on cynicism to demonstrate that Ms. Kagan may not view the recent second amendment precedents as settling the question of whether gun ownership is a ``fundamental right.''

Generally speaking, when a constitutional right is ``fundamental,'' any government restriction of that right is subject to ``strict scrutiny'' by the courts. But at her hearing, Ms. Kagan left open the possibility that some other, lesser standard of scrutiny should apply to second amendment restrictions. She said that ``going forward the Supreme Court will need to decide what level of constitutional scrutiny to apply to gun regulations.'' This does not sound like a commitment to the principle that the second amendment guarantees a fundamental right. When weighed with her well-documented work in the Clinton administration to advance gun control legislation, I believe there is a justifiable concern that Ms. Kagan would vote to construe Heller and McDonald as narrowly as possible.

Third, I am concerned that Ms. Kagan sees few, if any, limitations on Congress's authority to regulate behavior, or interstate commerce. In a remarkable exchange, Senator Coburn asked Ms. Kagan whether it would be constitutional for Congress to pass a law requiring Americans ``to eat three vegetables and three fruits every day.'' Although Ms. Kagan said that such a law sounded ``dumb,'' she refused to say that such a law would be unconstitutional. In fact, during the course of the exchange, Ms. Kagan repeatedly emphasized that a court analyzing such a statute should ``read the [commerce] clause broadly'' and give ``real deference'' to Congress.

I agree that the commerce clause gives the Congress substantial authority, but it does not give Congress unlimited authority. That Ms. Kagan was unwilling to say a law requiring the consumption of produce is beyond Congress's authority suggests she would vote to uphold statutes that exceed the boundaries of the commerce clause. Stretching the commerce clause gives too much power to Congress.

Finally, it is worth noting that Ms. Kagan came to the Senate with a lack of legal and judicial experience, especially when compared to other recent nominees. Some have reached back 40 years to compare Ms. Kagan's experience to that of Chief Justice Rehnquist, the last nominee without prior judicial experience confirmed to the Supreme Court in 1972. William Rehnquist, however, spent 16 years as a practicing litigator in my home State of Arizona and 2 more years as Assistant Attorney General, Office of Legal Counsel, a position that was later held Justice Scalia 1974-1977 and that, according to the Department of Justice, ``typically deal[s] with legal issues of particular complexity'' and ``provides authoritative legal advice to the President and all the executive branch agencies.'' In contrast, Ms. Kagan's law practice is confined to two years in private practice shortly after law school and 1 year as the Solicitor General.

Her limited experience is not by itself disqualifying, but it did increase the importance of her hearing. Had she answered questions in an honest and straightforward manner, we might have a better basis to know what kind of judge she would be. But instead, Ms. Kagan either dodged questions or gave what were clearly disingenuous answers intended to mask her views. She also failed to make the case that her political ideology would not influence her judging. For all of the reasons I have discussed, I cannot support her nomination.


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