Nomination Of Elena Kagan To Be Associate Justice Of The Supreme Court Of The United States - Continued

Floor Speech

BREAK IN TRANSCRIPT

Mr. BARRASSO. Madam President, this is the second time since I have become a U.S. Senator that I have been asked to provide the President advice and consent on a Supreme Court nominee. Last year, almost to the day, I spoke on the Senate floor on the nomination of Judge Sonia Sotomayor to be on the Supreme Court. So I come to the floor today to speak on the nomination of Solicitor General Elena Kagan.

During the debate in the Senate on Judge Sotomayor's nomination, I laid out the three criteria I use in evaluating an individual to fulfill the responsibilities of filling a vacancy on the Supreme Court.

First, of course, we want to select the best candidate. Second, the Justice must be impartial and allow the facts and the Constitution to speak. And, third, a Justice has a responsibility to apply the law, not to write the law. Those are the criteria I have used in evaluating Elena Kagan's nomination.

I met with Solicitor General Kagan following her appearance before the Senate Judiciary Committee. She is personable and she is bright. Her career as an attorney has been exceptional. Although she has limited trial experience, she does understand the important role the judiciary plays in America. It is the second criteria that causes me concern: Solicitor General Kagan's ability to remain impartial. In particular, her actions and judgment as dean of the Harvard Law School as it related to military recruitment is, to me, a serious problem.

Military recruitment on college campuses is protected by what is commonly referred to as the Solomon Amendment. The Solomon Amendment is legislation that Congress passed in the mid-1990s. The Solomon Amendment directs that institutions of higher learning shall not be eligible for Federal funding if they refuse to follow Federal law. Funding shall be denied--denied--if it is determined that the school, as a policy or a practice, either prohibits or, in effect, prevents ROTC access to campus or military recruiting on campus.

In the late 1970s, Harvard Law School adopted a policy that barred organizations that discriminated against any group from recruiting on campuses. The ban applied to military recruiters. Other universities adopted similar policies. But following the passage of the Solomon Amendment, many institutions, including Harvard, adjusted their policies.

Ms. Kagan became dean of Harvard Law School in the year 2003. In 2003, America was fighting two wars. American men and women were voluntarily joining the military to serve and to defend our country. At a time when military recruiters were being allowed on campuses across the country, Dean Kagan was looking for ways to make it difficult for military recruiters to do their job at Harvard Law School. She wrote at the time:

I abhor the military's discriminatory recruitment policy. ..... This is a profound wrong--a moral injustice of the first order.

Well, eventually, a legal challenge to the Solomon Amendment was initiated. On two occasions, Dean Kagan signed court briefs opposing the Solomon Amendment. In 2004, when a lower court rejected the Solomon Amendment, Dean Kagan immediately denied military recruiters the same access afforded to other recruiters on campus. She took this action even though the court making the ruling did not have jurisdiction over Harvard Law School. Harvard Law School is located in the First Circuit. The court that made the ruling was the Third Circuit.

The Pentagon notified Harvard that the restrictions on military recruiters violated the law. In 2006, the U.S. Supreme Court ruled on the challenge to the Solomon Amendment. The U.S. Supreme Court rejected the lawsuit as well as the arguments that were put forth in the brief signed by Dean Kagan, and it did so unanimously. All of the Justices on the Supreme Court, both conservative and liberal--all of them--agreed the Solomon Amendment did not violate the rights of law schools. The law was unanimously upheld, and that is an extremely rare occurrence from a Court usually divided.

For America's judicial system to work, judges must always remain impartial. I do believe that as dean of one of America's most prestigious law schools, Solicitor General Kagan allowed her personal biases to interfere with her judgment. Solicitor General Kagan had very strong opinions about military policies, including President Clinton's don't ask, don't tell policy. Like every American, she is entitled to her personal beliefs and the right to express those views. As the dean of Harvard Law School, she is also responsible to know the law and to not disregard it.

So, then, how can one explain the actions of Elena Kagan while dean of the Harvard Law School? No. 1, she didn't know the law; No. 2, she didn't understand the law; or No. 3, she simply chose to ignore the law because of her strongly held personal beliefs.

Many Americans may be able to get away with these explanations. Such explanations don't work for an individual seeking to become a Justice on the U.S. Supreme Court.

Elena Kagan has been nominated for a lifetime appointment to the Supreme Court. If confirmed, she will be entrusted to make decisions that will impact America for a long time. The decisions she will be asked to make on this Court must be based on the law not influenced by personal experiences or personal convictions.

In the case involving the Solomon Amendment, Dean Kagan failed to meet that standard. I believe Dean Kagan knew the law. I have no doubt she understood the law and wanted to find ways to get around the law.

I will not be supporting Solicitor General Kagan's nomination to the Supreme Court. I believe she allowed her personal beliefs to guide her. As a private citizen, that may be acceptable. As a member of the U.S. Supreme Court, it is not.

Thank you, Mr. President. I yield the floor and I suggest the absence of a quorum.

BREAK IN TRANSCRIPT

Source