Executive Session

Floor Speech

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Ms. SNOWE. Mr. President, I rise today to speak to the nomination of Solicitor General Elena Kagan to be the next Associate Justice of the Supreme Court of the United States. After a careful and considered review of her testimony before the Senate Judiciary Committee, her overall record, and my personal meeting with her in May, I have concluded that General Kagan should be confirmed as the next Associate Justice of the Supreme Court.

General Kagan would succeed Justice John Paul Stevens who has served our country as a decorated war veteran, a distinguished Federal appellate judge, and a Supreme Court Justice for nearly 35 years. I appreciate his service to our Nation, and believe that all of us in public service can learn from his dignified manner and sound advice to ``understand before disagreeing.''

As with the previous nominees to the Court that I have had the responsibility to review, I have not arrived at my decision lightly. It has been said that, of all the entities in government, the Supreme Court is the most closely identified with the Constitution--and that no other branch or agency has as great an opportunity to speak directly to the rational and moral side of the American character; to bring the power and moral authority of government to bear directly upon the citizenry.

The Supreme Court passes final legal judgment on the most profound social issues of our time. The Court is uniquely designed to accept only those cases that present a substantial and compelling question of Federal law; cases for which the Court's ultimate resolution will not be applied merely to a single, isolated dispute--but, rather, will guide legislatures, executives, and all other courts in their broader development and interpretation of law and policy. Ours is a government of liberty and order, of State and Federal authority, and of checks and balances, and the remarkable challenge of calibrating these fundamental balance points is entrusted ultimately to the nine Justices.

To help meet this extraordinary challenge, any nominee for the Court must, as I stated for previous nominees under both Republican and Democrat administrations, have a powerful intellect, a principled understanding of the Court's role, and a sound commitment to judicial method. A nominee must have the capacity to engender respect among the other Justices in order to facilitate the consensus of a majority. And to warrant Senate confirmation, the nominee must have a keen understanding of, and a disciplined respect for, the great body of law that precedes her.

It is with these high standards that we should also evaluate the record of General Kagan to serve as the Court's 112th Justice. General Kagan is a distinguished graduate from Princeton, Harvard, and Oxford Universities where she earned several distinct honors. She served as a law clerk to two judges, United States Court of Appeals Judge Abner Mikva and United States Supreme Court Justice Thurgood Marshall. General Kagan then worked in private practice as an associate at a leading D.C. law firm and a law professor at two of the Nation's most regarded law schools.

General Kagan has also served as a special counsel for the Senate Judiciary Committee; a lawyer in the Office of the Counsel to a President; a policy advisor to a President; and dean of the Harvard Law School. Most importantly, she has served as the 45th Solicitor General of the United States where she has participated in six oral arguments and overseen briefs and certiorari petitions in approximately 100 cases.

For her work as Solicitor General, Ms. Kagan has won the support of every one of the 10 Solicitors General who have served since 1985, including 5 Republican appointees. She has also earned the support of over 50 deputy and assistant solicitors general who have served over the last 42 years.

As these highly skilled professionals have noted, the ``job of Solicitor General provides an opportunity to grapple with almost the full gamut of issues that come before the Supreme Court and requires an understanding of the Court's approach to numerous issues from the criteria for certiorari review to the Justices' approach to oral argument. The constant interaction with the Supreme Court that comes with being the most-frequent litigator before the Court also ensures an appreciation for the rhythms and traditions of the Court and its workload.''

Prior to her 15 months as Solicitor General, Ms. Kagan had relatively little experience as an active practitioner. The American Bar Association's principle expectation for a Federal appellate nominee is ``at least'' 12 years experience actually practicing law, and even now she continues to fall short of that. This is due in part to the fact that she does not appear to have performed any amicus curiae or pro bono work while serving as a law professor.

Such practical experience often helps the Justices remain connected to the effect of their decisions on the lives of everyday people. All Supreme Court Justices, regardless of judicial philosophy, weigh the Constitution's text, history, context and precedents when deciding the landmark cases. Active practice of law experience helps with that process because, as prior Justices and distinguished scholars alike have observed, the Justices' decisions in landmark cases are inevitably ``channeled and constrained by who [they] are and what they have lived through.''

General Kagan has not given us the clearest insight into those experiences that she has ``lived through'' that will ``channel and constrain'' her sense of constitutional boundaries. At the same time, I find that her experience in working at the highest levels of all three branches of government will provide her with valuable insights as she approaches her work on the Court. I also accept her comments from our personal meeting that she did indeed have a ``formative experience'' as a young lawyer in learning that ``behind legal questions are real people with real lives.''

As regards General Kagan's lack of prior judicial service, I do not find that to be disqualifying. Nearly 40 Justices have served on the Court without prior judicial experience, including in more recent times Louis Brandeis, Hugo Black, Robert Jackson, Earl Warren, Lewis Powell, and William Rehnquist. Especially on the current Court where all of the existing members come from the Federal appellate courts, General Kagan should bring a new and different perspective.

This brings us to the additional factors we must consider when providing our consent on a President's nominee for Associate Justice--judicial temperament, methodology, integrity and philosophy. By their very nature, these attributes are often challenging to measure, but they can be assessed through a careful analysis of a nominee's complete record.

With regard to the first consideration, judicial temperament, we all agree that it is absolutely essential that a judge be fair, open-minded and respectful. Our citizens simply must have confidence that a judge who weighs their legal claims does so with an even temperament. A judge must be truly committed to providing a full and fair day in court, while projecting a sincere equanimity and respect for the law. When these attributes are not clearly present in our judges, the public justifiably begins to lose faith in the integrity of our courts.

By all accounts, whether from conservative former Solicitors General Ken Starr and Ted Olson, and Assistant Solicitor General Miguel Estrada, General Kagan has a clear reputation for a sound judicial temperament. She projected poise throughout this process, during her hearing and in our personal meeting. Likewise, she has testified and spoken about the necessity of courts to provide a ``level playing field,'' of maintaining a fidelity to the law, and of the essential requirement not to prejudge any case, stating during her hearing that judging is about ``what the law says, whether it's the Constitution or whether it's a statute ..... the question is always what the law says ..... it's what the text of the Constitution says ..... what the law says, not a judge's personal views.''

Turning to the considerations of judicial methodology and integrity, General Kagan does not have a judicial service record to review. We can, however, examine her scholarship. Here, she has six scholarly articles, two scholarly book reviews and a variety of other commentaries. I have some concern that this collection is, by academia's standards, not especially prodigious, and that General Kagan did not continue her scholarship during her six years as Harvard's dean.

Her eight scholarly publications do, however, tackle the difficult subjects of Presidential power, the delegation doctrine, and hate speech. In particular, her Presidential Administration and Chevron's Non-delegation Doctrine article from 2001, as well as The Changing Faces of First Amendment Neutrality article from 1992, demonstrate both close attention to complicated legal detail and careful legal analysis--skills essential for the difficult work of the Court.

We can also review her approach to judicial methodology from her answer to my request to identify three of the Court's constitutional opinions--majority, concurring or dissenting--that in her view exemplify sound judicial methodology. First, General Kagan chose Justice Oliver Wendell Holmes' 1905 dissenting opinion in Lochner v. New York. In that case, the Court invalidated a State law prohibiting an employer from requiring a baker to work more than 60 hours per week. The Court reasoned that the statute ``necessarily interferes with the right of contract between the employer and employees,'' a right that is ``part of the liberty of the individual'' protected by the 14th amendment.

General Kagan cited this opinion as a ``concise and persuasive formulation of the proper role of the judiciary in relation to the political branches of government,'' highlighting these passages:

I strongly believe that my agreement or disagreement [with the law] has nothing to do with the right of a majority to embody their opinions in law. ..... The Constitution is ..... made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States. [Justices should not use their office] to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.

Next, General Kagan selected a 1927 concurring opinion in Whitney v. California where the Court unanimously upheld a conviction for conduct threatening to overthrow our government by unlawful means. Calling the concurrence an ``inspiring example of a commitment to protecting constitutional rights'' and a ``stirring reminder of the value of freedom of speech in our society, including its importance to democratic self-governance,'' General Kagan cited her admiration for this paragraph:

Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.

Finally, General Kagan identified a 1952 concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer. There, the Court held that President Truman exceeded his constitutional authority when he ordered the Secretary of Commerce to take possession of most of the Nation's steel mills in the face of a labor strike during the Korean war. Respecting a concurring opinion as the ``definitive framework for evaluating the constitutionality of presidential action,'' General Kagan observed that:

Two aspects of the opinion are notable. First, Justice [Robert] Jackson's opinion is a classic formulation of the propositions that executive authority is not unlimited even in wartime and that the President is not above the law. That is all the more remarkable given that its author had served in the Executive Branch for much of his career, including as Solicitor General and Attorney General. Second, Justice Jackson refused to oversimplify constitutional analysis. ..... [H]is analysis depended in large measure on an assessment of relevant historical practices and political processes. That analysis was resolutely legal in its nature; it was not based on the Justice's political preferences or personal views. But the analysis took into account the full complexities of constitutional interpretation in its relation to modern governance. That is what has given Justice Jackson's concurrence its staying power and has made it the Court's principal precedent on executive power.

These three replies by General Kagan are informative. Together they argue for a limited judicial role, and demonstrate her command of the philosophical underpinnings of core constitutional doctrine and her insight into the necessity of aligning those theories with the functional ``complexities of modern governance.'' They also convey an awareness of, and therefore perhaps a capacity for, judicial statesmanship. As Justice Felix Frankfurter once noted, ``breadth of vision'' and ``capacity to transcend one's own experience'' are often the defining qualities that matter most in guiding a Justice's work on landmark cases.

As regards her views on substantive subjects of law, conservative attorneys such as Charles Fried, Michael McConnell and Paul Clement have agreed that General Kagan is in the mainstream. For example, she has affirmed forcefully that stare decisis is a critical command for the Court. As she wrote to the committee, that command requires a careful inquiry into whether the precedent has ``been found unworkable, whether subsequent legal developments have left the rule an anachronism, or whether premises of fact are so far different from those initially assumed as to render the rule irrelevant or unjustifiable.'' Moreover, she testified that:

The entire idea of precedent is that you can think a decision is wrong. You can have decided it differently if you had been on the court when that decision was made. And nonetheless you are bound by that decision. That's--if the doctrine of precedent enabled you to overturn every decision that you thought was wrong, it wouldn't be much of a doctrine. ..... I think when the court looks as though it's flipping around and changing sides just because the justices have changed, that's bad for the credibility of the institution and it's bad for the system of law.

General Kagan has also stated that the Constitution protects a right of privacy and that Roe v. Wade is not only ``settled law'' but has been ``doubly settled'' by Planned Parenthood v. Casey. Likewise, she has stated that foreign law should not have precedential weight in ``any but a very, very narrow set of circumstances,'' such as limited cases involving ``ambassadors'' or the ``law of war.'' And finally, she has testified, as noted above, that Youngstown Sheet & Tube remains the ``determinative'' governing standard in assessing Presidential wartime powers.

With respect to the second amendment, in my view, as a long-time, ardent supporter of second amendment rights, I have carefully examined General Kagan's work as the President's attorney a decade ago on a variety of legislation affecting gun ownership rights. This is a fair question and, here, General Kagan testified as follows:

The work that I did in the Clinton White House was all work ..... before Heller was decided, and so we really ..... did not consider ..... regulations through the Heller prism ..... because Heller didn't exist at that time. ..... What President Clinton was trying to do back in the 1990s and what I as his policy aide was trying to help him do, was to propose a set of regulations that had very strong support in the law enforcement community, that had actually bipartisan support here in Congress to keep guns out of the hands of criminals, to keep guns out of the hands of insane people. It was very much an anti-crime set of proposals that I worked on back then in the '90s.

A former White House colleague corroborated General Kagan's testimony: ``In all these cases, [President] Clinton had already settled views on these questions. Our job was to make sure the government's policy reflected what he wanted. He'd already made up his mind on most of these contentious issues.''

As several members of the committee during General Kagan's hearing noted, this same point--that a lawyer's job is to represent the client's views, and not the lawyer's own views--was also made by Justices Roberts and Alito when they were asked during their confirmation hearings about advice they gave while serving as executive branch attorneys. Both nominees testified that their executive branch legal counsel reflected ways to advance their elected client's, not their own personal, legal interests and policy preferences.

With respect to the fact that, more recently, General Kagan did not file a brief for the United States in McDonald v. City of Chicago--McDonald did present an important question regarding the interplay of the second and 14th amendments, and I joined an amicus brief in support of Mr. McDonald's claim to incorporate the second amendment through the 14th amendment, so that the protections of the second amendment would apply not just against Federal acts, but against the acts of State and local governments as well. Here, several observations are warranted.

First, McDonald presented only the question of whether the second amendment applied to State and local governments, and not what the scope of the protections of the amendment is. As a result, McDonald, unlike Heller, presented no implications for the constitutionality of Federal gun laws. Accordingly, the United States was not a party in the case.

Second, the issue of incorporation is by its very nature one of primarily State and local, and not Federal, concern. This explains the amicus brief signed by 38 States in this case. This also explains why the Solicitor General's Office has a tradition of not weighing in on incorporation cases. General Kagan wrote to the committee in response to a supplemental question that:

It has long been the practice of the Office of the Solicitor General not to file an amicus brief in cases concerning the application of a constitutional provision to the states (so-called incorporation cases). Although incorporation cases raise important issues of constitutional interpretation, and may matter greatly to individual citizens, those issues do not implicate the responsibilities and obligations of the federal government under the Constitution. Incorporation cases therefore do not fall within the category of cases in which the Office of the Solicitor General files amicus briefs: those where the federal government itself has a clear and specific interest in the resolution of the case.

This response is consistent with the reported statement of former Solicitor General Erwin Griswold, who was uniquely appointed by a Democratic President, President Johnson, and retained by his Republican successor, President Nixon. In 1970, General Griswold reportedly wrote that incorporation cases are rarely of direct interest to the Federal government because ``fundamental considerations of federalism militate against executive intrusion'' into issues of State and local law.

Further, although former Solicitor General Paul Clement did appear in Heller for the United States, under the Bush administration, Heller was not an incorporation case. Moreover, the broader question presented by Heller, unlike McDonald, did implicate the basic scheme of Federal firearms regulations.

Yet even then, General Clement argued in Heller for a somewhat narrower ruling regarding personal rights. He also argued for a somewhat higher level of judicial scrutiny of challenges to regulation of such rights in order to ensure that the longstanding existing Federal laws--like possession of machine guns, possession by convicted felons, or possession on Federal property--that his office is required to defend were protected. A majority of the Court ultimately respected and accepted General Clement's concern in both Heller and McDonald. As Senator Cornyn noted at the hearing, Justice Alito wrote for the majority in McDonald that:

We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as `prohibitions on the possession of firearms by felons and the mentally ill, ..... laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.' We repeat those assurances here; ..... incorporation does not imperil every law regulating firearms.

Perhaps most importantly, General Kagan testified repeatedly that both McDonald and Heller are settled law. As regards McDonald, General Kagan said, ``I do think that ..... decision [McDonald] [is] settled law; entitled to all of the weight that any precedent of the Supreme Court has; [and] ..... can only be overturned if there is strong evidence the ruling [among all of the other stare decisis factors] is unworkable.''

On Heller, she said: ``I think that Heller is settled law and Heller has decided that the Second Amendment confers such an individual right to keep and bear arms. I have absolutely no reason to think that the court's analysis was incorrect in any way. I accept the court's analysis and will apply it going forward.'' She also said that Heller's finding that a personal right of possession is ``deeply rooted in this Nation's history and traditions'' is a ``central part of the rationale'' of Heller and, again, is ``settled law.''

Moreover, she testified that she has ``never believed that the president had the power to prohibit [the sale of firearms] without legislative authorization. ..... In fact, that's one [issue] that Heller and McDonald don't effect, that the president didn't have that power before and doesn't have that power after.'' She also testified that ``the Second Amendment question, as defined by Heller, was so peculiar to our own constitutional history and heritage that ..... foreign law didn't have any relevance.''

Turning to another important issue, I also share the concern for how General Kagan approached the issue of military recruiting at Harvard Law School. Under the Solomon amendment, universities like Harvard that receive Federal funding are required to permit military recruiters on campus. Opposing the military's don't ask, don't tell policy, General Kagan was one of several deans to relegate military recruiters to a less preferred position by withholding Office of Career Services' sponsorship.

General Kagan also participated in a lawsuit challenging the Solomon amendment as unconstitutional. Had she prevailed in that suit, colleges and universities across the country could have denied the military on-campus access to students across the country. Fortunately, the Supreme Court summarily and unanimously rejected this challenge in 2006 in Rumsfeld v. F.A.I.R.

General Kagan continues to defend her decision as a difficult mediation of competitive on-campus interests. But the prevailing recognition here is that the Nation was fully engaged in two wars designed to advance national security, and so I continue to be troubled that General Kagan chose to relegate the military rather than her institution's financial or policy interests.

Reviewing the final consideration of judicial philosophy, General Kagan has spoken directly to the important but appropriately limited role that the Court plays in our constitutional scheme of government. She recognizes that the Court is the ``least accountable'' of our governmental institutions and that the Court is not ``self-starting.'' Citing Alexander Bickel and his 1961 seminal article, General Kagan stated in our personal meeting that the ``passive virtue'' of the Court rests in what it does not do, and that the Court should work hard ``not do more than is called for'' and ``not go too far.'' Likewise, she said in her questionnaire that ``I think it is a great deal better for the elected branches to take the lead in creating a more just society than for courts to do so.''

We recently witnessed what happens when the Court does not adhere to such decision-making restraints. We are all familiar with Citizens United v. F.E.C. where the Court overruled a mere 7-year-old precedent to strike down the electioneering communications provision of the Bipartisan Campaign Finance Reform Act.

There, the majority effectively converted on its own motion an as-applied challenge into a facial challenge through its order for re-argument. According no deference to our 100,000-page factfinding record that took Congress over 10 years to assemble, and further dismissing the commands of stare decisis, the majority then rejected the relatively recent 1990 precedent of Austin v. Michigan Chamber of Commerce and the very recent 2003 precedent of McConnell v. F.E.C. Instead, the majority inflated the precedential value of the majority's very recent--only decided in 2006--and readily distinguishable F.E.C. v. Wisconsin Right to Life and eschewed arguments to decide the case on narrower statutory grounds. Consequently, and in striking contrast to claims of ``judicial modesty,'' the majority then struck down the electioneering communications provision of BCRA on the broadest of grounds.

Even granting that General Kagan was an advocate in the case, I was pleased to hear her say in our personal meeting that the Citizens' majority ``did not respond in the right way. Congress had gone through an enormous record and the Court had ruled only a few years earlier. From where I sat, the Court was wrong.''

I also agree with Justice Stevens' dissent in Citizens that the activist ``path'' taken by the Citizens'' majority will ``do damage'' to the Court itself. Citizens is not, of course, the only recent case in which Justices and scholars from across the political spectrum have viewed the Court's majority as overreaching. Indeed, opinions in Montejo v. Louisiana, Gross v. FBL Financial Services, Ashcroft v. Iqbal, and related commentaries have all expressed the same concern.

Finally, I note that, if confirmed, General Kagan will become the fourth female Justice ever to serve on the Supreme Court. She will follow Sandra Day O'Conner and join Justices Ruth Bader Ginsburg and Sonia Sotomayor. General Kagan has already become the first woman to serve as Solicitor General of the United States, and the fact remains that it does make a difference who women and girls see at the pinnacles of government and industry. As Justice Ginsburg observed at the time of Justice Sotomayor's nomination, ``women belong in all places where decisions are being made.''

Ultimately, when the Framers accorded us the special role of confirming judicial nominees that we are exercising here today, having delegated the power of nomination to the Office of the President, and having recognized that elections to that office may affect the overall composition of the Court, the Framers expressly intended that we review judicial nominees not by their affiliations, but by their qualifications. This is why Alexander Hamilton wrote in Federalist 76 that the Senate should deprive a duly elected President of his or her nominee only for ``special and strong reasons.''

In reviewing the record of General Kagan's scholarship, the to, evidence of her reputation, and her responses to the committee and other Members throughout this process, I find in that General Kagan has a very capable intellect and a deep respect for the rule of law. She has a command of the important but limited role of the courts, and a demonstrated commitment to stability in the law. It is therefore my conclusion that Solicitor General Elena Kagan is qualified to serve as the next Associate Justice of the Supreme Court.

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