BREAK IN TRANSCRIPT
Mr. REED. Mr. President, we are debating the President's nomination to succeed Justice John Paul Stevens, who has served this country admirably and with great distinction. I rise in wholehearted support of Solicitor General Elena Kagan's nomination to be our next Supreme Court Justice. She has had an illustrious legal career that includes clerking for Judge Abner Mikva on the U.S. Court of Appeals for the D.C. Circuit and Justice Thurgood Marshall on the U.S. Supreme Court; obtaining tenure at two of the top law schools in the country, the University of Chicago and Harvard; serving as an associate counsel in the Clinton administration; becoming Dean of Harvard Law School; and now serving as Solicitor General of the United States. Casting a vote on a nominee to the Supreme Court is one of the most consequential votes we face as Senators because no court can review the decisions of the Supreme Court. They are the ultimate arbiters of the law and the Constitution in this country.
The Constitution includes the Senate as an active partner, along with the President, in this process of confirming Justices to the Supreme Court. As stated in article II, section 2, clause 2 of the Constitution, nominees to the Supreme Court shall only be confirmed ``by and with the Advice and Consent of the Senate.'' This confirmation process and the Senate's role in it serves as a vital democratic check on America's judiciary, particularly in a case where a Supreme Court Justice will serve for a life term.
Indeed, one of the Senate's greatest opportunities and responsibilities to support and defend the Constitution of the United States is achieved through upholding our duty as Senators to give advice and consent on the nominations of the President to the Federal bench.
As I have stated before, my test for a nominee is simple and is drawn from the text, the history, and the principles of the Constitution. A nominee's intellectual gifts, experience, judgment, maturity, and temperament are all important, but these alone are not enough. I need to be convinced that a nominee to the U.S. Supreme Court will live up to both the letter and the spirit of the Constitution. The nominee needs to be committed not only to enforcing laws, but also to doing justice.
The nominee needs to be able to make the principles of the Constitution come alive--equality before the law, due process, full and equal participation in the civic and social life of America for all Americans; freedom of conscience, individual responsibility, and the expansion of opportunity. The nominee also needs to see the unique role the Court plays in helping balance the often conflicting forces in a democracy between individual autonomy and the obligations of community, between the will of the majority and the rights of the minority. A nominee for the Supreme Court needs to be able to look forward to the future not just backwards. The nominee needs to make the Constitution resonate in a world that is changing with great rapidity.
Elena Kagan passes this test. She is extraordinarily qualified on the basis of her intellectual gifts. But what is most striking about Solicitor General Kagan, in both her academic work and her life work, is her commitment to the Constitution.
In a speech she gave in October 2007 at my alma mater, West Point, well before she was considered for Solicitor General or for the Supreme Court, she stated that our Nation is most extraordinary because we, in her words, ``live in a government of laws, not of men or women.'' She used as a touchstone for her speech a place on the West Point campus called Constitution Corner, which was a gift from the West Point class of 1943, who not only served our Nation but defended the Constitution through the rigors of World War II and beyond.
There are five plaques at this sight. One of the plaques is titled ``Loyalty to the Constitution,'' one of the principal tenets by which every professional soldier must abide. It basically states what those who serve in the military are keenly aware of and points to the fact that the United States broke with an ancient tradition when it was created. Instead of swearing loyalty to a military leader, the American military swears loyalty to the Constitution. Interestingly enough, although Elena Kagan never wore the uniform of the United States, she has demonstrated this same loyalty to the Constitution throughout her life.
I am confident she will continue to uphold and defend our Constitution as she assumes her next role as a Justice of the Supreme Court. During her confirmation hearings, on the role of a judge, she said:
As a judge, you are on nobody's team. As a judge, you are an independent actor, and your job is simply to evaluate the law and evaluate the facts and apply one to the other as best, as prudently and wisely as you can. You know, the greatness of our judicial system lies in its independence, and that means when you are on the bench, when you put on the robe, your only master is the rule of law.
Supreme Court Justices matter, and their impact on the lives of Americans from all walks of life can be profound. We only need to look at a couple of the recent Supreme Court decisions to understand how profound that impact can be.
More than four decades ago, Congress passed laws to protect women and others against workplace discrimination. However, five Justices in the case of Ledbetter v. Goodyear Tire gave immunity to employers who secretly discriminate against their workers. Thankfully, we passed the Lilly Ledbetter Fair Pay Act of 2009, which I cosponsored and President Obama signed into law, to ensure equal pay for equal work and to effectively and properly overturn this immunity granted by these five Justices.
This year, five Justices in Citizens United v. Federal Election Commission favored big corporations by ignoring precedent to bestow upon corporations the same power as any individual citizen to influence elections--in fact, some might argue much greater power through much greater spending. In his dissent, Justice Stevens, who is retiring and who will, I hope, be replaced by Solicitor General Elena Kagan, warned that the ``Court's ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.''
On this point, the words of Lilly Ledbetter are particularly relevant. The plaintiff in the famous case said:
We need Justices who understand that law must serve regular people who are just trying to work hard, do right, and make a good life for their families ..... This isn't a game. Real people's lives are at stake. We need Supreme Court Justices who understand that.
Elena Kagan understands this point, and she will bring this understanding to the U.S. Supreme Court.
In addition, I am confident that Solicitor General Kagan's tenure as Dean of Harvard Law School will serve her well as she works with her colleagues on the Court. As Dean, she drew acclaim as a pragmatic problem solver who could bridge ideological divides among the faculty. Indeed, her success in leading and bringing together one of the most contentious legal faculties in the Nation is a testament to her interpersonal, oratory, and analytical skills--all of her skills. As someone who had the privilege of graduating from Harvard Law School, I can indeed confirm that it is one of the most intellectually contentious places in the country, as it should be, because it is there where the ideas of law, of Constitution, and of our relationships with one another in this democracy, are vigorously debated.
The fact that she has garnered wide bipartisan support is further evidence of her great standing. She has received the endorsement of eight former Solicitors General from both parties, including Ken Starr and Ted Olson; 54 former Deputy and Assistant Solicitors General of both parties; 69 law school deans; and more than 850 law school professors from across the country and across the political spectrum.
Just to give an example of how well regarded she is, here is what Professor Jack Goldsmith, former Assistant Attorney General during the George W. Bush administration, had to say:
[Elena] Kagan possesses an extraordinary knowledge of the legal issues before the Supreme Court. Whatever else may be said about being a law professor, it is the profession that requires one to know legal subjects comprehensively enough to teach them ..... What I do know is that Kagan will be open-minded and tough minded; that she will treat all advocates fairly and will press them all about the weak points in their arguments; that she will be independent and highly analytical; and that she will seek to render decisions that reflect fidelity to the Constitution and the laws.
Clearly, she is not only well qualified, but she also has wide bipartisan support.
Before I conclude, I wish to make one final point regarding Elena Kagan's respect and admiration for the military. She has won praise from students who have served our country in uniform for creating a highly supportive environment for students who served in the Armed Forces of the United States and who were attending Harvard Law School. In my view, her respect and admiration for the military is sincere and proven.
America's courtrooms are staffed with judges not machines because justice requires human judgments.
This is particularly so on the Supreme Court. Of all the hundreds of thousands of cases filed in American Federal courts each year, only a small percentage reach the Supreme Court. These are the hardest of cases--cases that have divided the country's lower courts. These are cases where one constitutional clause may be in conflict with another, where one statute may influence the interpretation of another, and where one core national value may interfere with another. These cases often divide the Justices of the Court by close margins.
Surely, the Justices on both sides of a 5-to-4 case can claim to be following the judicial process and respecting the precedents of the Court. What divides their opinions is the set of constitutional values they bring to the case. Elena Kagan, in my view, brings the set of constitutional values that, to quote the words of Lilly Ledbetter again, will make her a Supreme Court Justice ``who understand[s] that law must serve regular people who are just trying to work hard, do right, and make a good life for their families.'' As Elena Kagan herself put it, she will do her ``best to consider every case impartially, modestly, with commitment to principle and in accordance with the law.''
It is with great pleasure that I support the nomination of Elena Kagan to the highest Court in the land, and I urge my colleagues to do the same.
I yield the floor.
BREAK IN TRANSCRIPT