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Public Statements

Executive Session

Floor Speech

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Date:
Location: Washington, DC

BREAK IN TRANSCRIPT

Mr. COBURN. Mr. President, I am here to talk about the nominee, Ms. Kagan, for the Supreme Court, but I thought I would put it in the context of how I view what we are doing.

As a physician, a father, and a grandfather taking a look at where we are as a nation, it is very worrisome to me. The 62 years I have lived have been fraught with great opportunity, great challenges, but never with a fear that what we have in this country may not last. I have to admit to my colleagues that I have that fear now. And it is not an unfounded fear. You see, this year we will borrow almost $1.6 trillion from our grandchildren. We will borrow in excess of $4 billion a day--money we don't have. At this moment, we owe $13.35 trillion. No question, we are the biggest economy in the world, being fast caught by other large economies.

The uniqueness of the American experiment could have been predicted by those who studied republics because freedom and liberty were the basis for such an explosion in growth and wealth and freedom and standard of living. The poor in our country live far in excess of half of the world's populations because of the great republic we are.

I believe we have a short period of time to right the ship for our country. We have large disagreements in this body on how we do that, and others' ideas have as much value as mine. But it is not debatable the kind of trouble we are in as a nation. It is indisputable. We have a mountain of debt, and we are going to have interest costs that are going to chew up our freedom and chew up our children's prosperity and opportunity over the years that lie ahead of us.

So we have great responsibility as we place somebody on the Supreme Court. Our constitutional responsibility is to advise and either give consent or not give consent. I have no doubts that my speech on the floor this afternoon will change any Senator's mind. It won't. But what I hope to do is to lay out the questions, as we put Ms. Kagan on the Court, of where we will be with the basis of her philosophy. I have served on the Judiciary Committee for almost 6 years. I have been through four Supreme Court Justice hearings. I have met with four--actually, more than four--prospective nominees to the Supreme Court, and the responsibility is heavy.

Elections do have consequences. They give the President of the United States the right to appoint, with advice and consent, all the judges in this country, as well as numerous other officials. But none is greater and none is more important than a Supreme Court Justice.

My concern with Ms. Kagan is whether she really believes in what our Constitution says, and by her own words she fails to meet that test. So I think it is time for an extra parameter to be considered in light of the difficulties we face when we give consent for somebody who is going to be in a lifetime position who will, I believe, have negative consequences for our future. And I am going to spell out why I believe that.

Ms. Kagan is a highly qualified woman who has attained much in her young life. She is highly intelligent, highly articulate, and quite pleasant. I believe she did the best job of at least letting us get to see some of what she thinks of any of the Supreme Court nominees we have heard, and I give her credit for that. But what I saw causes me to shake in my boots, and let me tell you why.

Ms. Kagan made two critical statements. She believes Supreme Court precedent trumps the original intent of our Founders. Think about that for a minute. We just heard the Senator from Delaware mention Brown v. Board of Education. Under that philosophy, reaching back to our Declaration of Independence and our Constitution, Brown v. Board of Education would never have happened. We would have had ``separate but equal'' had we relied on Supreme Court precedent and not the underlying body of our Constitution.

As I was reading recently, I came across something written by Calvin Coolidge. He is not very often quoted in this body, and for some of that I understand why.

But one of the other things Nominee Kagan did was she refused to embrace natural rights in her testimony before the committee. You see, the whole foundation for our country is based on the fact that the rights we have are not given to us by the Congress of the United States or the Government of the United States or the Constitution of the United States; they are inherently ours. They are inalienable rights--the right of life, the right of liberty, the right to pursue happiness. We have a government to be a caretaker, to ensure our rights are not infringed upon. So lacking that understanding--and it wasn't just once that she was asked that; she was asked that in terms of Blackstone's principles on the right of an individual to defend their life. She does not embrace that concept. It was not only evident in her plain words that she spoke but in her answers indirectly to other questions.

So we have a Supreme Court nominee who believes that the wisdom of men today, outside of the Constitution, based on precedent, trumps the wisdom that was brought forth by our forefathers in both the Declaration of Independence and the Constitution of the United States. And there are other proofs for this that I will go through during my speech to explain.

Listen to what Calvin Coolidge had to say:

About the Declaration there is a finality that is exceedingly restful. It is often asserted that the world has made a great deal of progress since 1776; that we have had new thoughts and new experiences which have given us a great advance over the people of that day, and that we may therefore very well discard their conclusions for something more modern. But that reasoning cannot be applied to this great charter.

Or the Constitution that followed it.

If all men are created equal, that is final.

It can't be improved upon. It can only be lessened.

If all men are endowed with inalienable rights, that is final.

It cannot be improved upon. It can only be lessened.

If governments derive their just powers from the consent of the governed, that is final.

The power of the U.S. Government comes from the power we loan to the government as people and citizens of the United States.

No advance, no progress can be made beyond these propositions. If anyone wishes to deny their truth or their soundness, the only direction in which he can proceed historically is not forward, but backward toward the time when there was no equality, no rights of the individual, no rule of the people. Those who wish to proceed in that direction cannot lay claim to progress. They are reactionary. Their ideas are not more modern, but more ancient, than those of the Revolutionary fathers.

Well said, Calvin Coolidge. Well said.

So we have before us a judge who said the following to me during our hearing:

To be honest with you, I don't have a view of what are natural rights, independent of the Constitution.

Oh, really? So we are going to have a Supreme Court Justice who has no view of what our inalienable rights are other than what the Constitution says? Where can that take us? It can take us anywhere she wants to go, outside the bounds of the very liberties we loan to the government to have a civil society.

If you look at the Declaration of Independence, it says:

We hold these truths to be self-evident--

Why aren't they self-evident to her? Why doesn't she hold an opinion on them--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 .....

We have inalienable rights. We have natural rights. Yet we are about to put a Justice on the Supreme Court for life who, by her own words, does not have a view of what are natural rights. I don't know anybody who is an adult in this country who doesn't have a view of what they think are their natural rights.

This is a quote from Elena Kagan:

In some cases original intent is unlikely to solve the question, and that might be because the original intent is unknowable or might be because we live in a world that's very different from the world in which the framers lived. In many circumstances, precedent is the most important thing.

No, that is just the opposite of what Coolidge had to say about the Declaration of Independence, just exactly the opposite. More modern, we got it right. Natural rights do not matter. Our wisdom, our intellect, our arrogance--of a government and the governing body--has more import, has more value, has more to do with what we do today than the wisdom of those inalienable rights and the Constitution that came out of it.

Do you realize that in the Constitution, for every time it gives us a responsibility, it says four or five times what we can't do? Because the Framers were interested, and knowing the condition of men, that we would abandon--our tendency would be to allow the concentration of power to abandon those very principles they put into the Constitution.

What did Madison have to say, just on the general welfare clause of the Constitution? He anticipated the Elena Kagans of this world. He said:

With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.

You see, that is how we have gotten into trouble as a country. That is why our economic future is not secure--because the Congress has exceeded its authority under a limited Constitution and the courts have failed to rein us in. They have failed to recognize their obligation.

So we are going to have someone who believes that the precedent and wisdom of modern men is much more important than the original intent of our Founders to keep us free, to secure our liberty, to provide our inalienable rights to the pursuit of life, liberty, and the pursuit of happiness.

Here is another area. If we read the Constitution and we read where they have set up our judicial system, what they reference, they say:

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority. .....

They gave no wiggle room for the utilization of foreign law in interpreting the U.S. Constitution--none. Here is Elena Kagan:

It may be proper for judges to consider foreign law sources in ruling on constitutional questions.

Here is what the Constitution says. Here is what the nominee to the Supreme Court says--exactly opposite of what the Constitution says. In other words, it is OK to use any source of law you want, not the source that the Constitution says you will be bound by in your oath.

Let's take it a step further, same quote: ``Judges can get'' good ideas ``on how to approach legal issues from a decision of a foreign court. It may be proper for judges to consider foreign law sources in ruling on Constitutional questions.''

Here is their oath:

I do solemnly swear that I will faithfully and impartially discharge and perform all the duties incumbent upon me as a justice under the Constitution and laws of the United States. So help me God.

``Under the laws and the Constitution of the United States'' is not foreign law. That is the U.S. Constitution and our statutes. So as soon as she takes the oath, her very philosophy violates it because she honestly testified that it is fine to use foreign law to interpret our laws and our Constitution.

Again, how did we get in the trouble that we are in today? How did we get that 20 years from now every man, woman, and child in this country is going to be responsible for over $1 million worth of debt? How did we get to the point where $350 billion of waste, fraud, and duplication occurs every year in the Federal Government? How did we get to the point that we can take people's rights away because we deem so in the Congress, in our smart, modern wisdom that lessens liberty and freedom throughout this land?

We do it because we do not use the book, and we don't follow the oath that we are sworn to uphold; that is, the U.S. Constitution and the laws of this land.

Then it comes to the commerce clause. Elena Kagan:

The commerce clause has been interpreted broadly. It's been interpreted to apply to ..... anything that would substantially affect interstate commerce.

When asked if a Federal law requiring Americans to eat three fruits and three vegetables every day would be unconstitutional, Ms. Kagan avoided the question by simply saying, ``That would be a dumb law.''

Madison had something different to say:

Ambition must be made to counteract ambition.

He is talking about us.

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place oblige it to control itself.

We have had this vast expansion since the late 1940s in this country in the commerce clause. It started with Wickard v. Filburn. A farmer raising chickens was raising his own wheat. But the Government didn't want him raising his own wheat because they had allotted limits during the 1930s, the Great Depression--limits to what you could grow. So he owns his own land, he has his own chickens, but the Supreme Court said: You can't raise your own feed. You have to buy it from somebody.

So here we started with the Supreme Court ruling and moving in to take away the freedom of an individual farmer to raise his own feed for his own chickens for a greater good--supposedly to control the price and availability of wheat.

What has happened to us since then? Look at the expansion of the commerce clause and how it is moving power away from those who are governed without their consent to a central government in Washington. What does Ms. Kagan complain about during the hearing? That she thinks the Supreme Court may be moving to reverse that--of which she adamantly disagrees. When asked about the Seminole case and the Lopez case, she worried that it moves us back to individual freedom and a more restrictive commerce clause, a commerce clause that says our rights are more important than those of the government.

That goes back to the basis that she doesn't believe we have natural rights. The fundamental question of whether an individual, free in a country, can walk on to the Supreme Court and disavow inalienable rights and natural rights, that is a very dangerous concept because if you don't believe in natural rights, you don't worry about taking them from those who are governed. You don't worry about the Congress taking them from those of the governed.

We are about to move to a point where we are going to put somebody in a lifetime position on the U.S. Supreme Court who believes in foreign law utilization to interpret the issues before it; who believes that precedent trumps original intent of the Founders--in other words, the arrogance is we are much smarter than they were, our wisdom is much better, we are more modern, therefore things have changed, therefore we have to ignore what they have said; that the commerce clause is boundless; even if Congress passes stupid laws, they have the right to do it and there is no obligation on the Court to look at the Constitution and the documents behind it and what our Founding Fathers had to say about the authority and what they intended and meant as they wrote that clause into the Constitution.

Then, finally, one last point. She does not believe in the individual natural right that you have as a person to defend yourself. She wouldn't embrace that--which implies, very rightly so, that the second amendment, even though we now have precedent, is at risk under Elena Kagan as a Supreme Court Justice.

So, summing up, we are going to put somebody on the Court that I see will further the problems we have versus starting to reembrace the principles that made this country great. Are we going to embrace what has gotten us into trouble? Are we going to embrace the $13.34 trillion worth of debt growing at $1.4 trillion to $1.6 trillion today, that is stealing the opportunity of the future? We are. We are going to put her on there, and her wisdom and her vision is very different from our Founders, our Constitution, and our natural rights.

This will be a huge mistake for this country if we want to solve the problems in front of us. As I said, I don't expect anybody to change their vote on the basis of my viewpoint. I will congratulate her for being more honest and open on her testimony than others would because normally we would not find out these things about judges.

With the word ``hark,'' I yield the floor.

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