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Public Statements

Nomination Of Elena Kagan

Floor Speech

Location: Washington, DC

Mr. SPECTER. Madam President, I have sought recognition to comment on the range of questions for Solicitor General Kagan on her forthcoming hearings before the Senate Judiciary Committee.

Solicitor General Kagan has issued a fairly broad invitation, in effect, on questioning. In an article that she published in the Chicago Law Review back in 1995, her comment at that time was, in part, as follows:

When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity . . . and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public. For nominees, the safest and surest route to the prize lay in alternating platitudinous statements and judicial silence. Who would have done anything different in the absence of pressure from Members of Congress?

That is a fair-sized invitation for a little pressure from Members of the Senate. I think she is right in her pronouncements, and it is something we ought to do. She goes on to write in the law review article:

Chairman Biden and Senator Specter, in particular, expressed impatience with the game as played. Specter warned that the Judiciary Committee one day would ``rear up on its hind legs'' and reject a nominee who refused to answer questions. Senators do not insist that any nominee reveal what kind of a Justice she would make by disclosing her views on important legal issues. Senators have not done so since the hearings on the nomination of Judge Bork.

Solicitor General Kagan goes on to write:

A nominee lacking a public record would have an advantage over a highly prolific author.

There has been some questioning as to whether this nominee has such a small paper trail that it will be doubly difficult, or significantly more difficult, to find out her views. But in her law review article, noting the difference with that kind of a paper trail is, again, another invitation.

The author of the law review article, Solicitor General Kagan, goes on to write:

The Senators' consideration of a nominee, and particularly the Senate's confirmation hearing, ought to focus on substantive issues.

Well, that, then, raises the question about how do you get answers on substantive issues, and what is the value of the substantive issues when the nominee, after being confirmed, is on the bench?

Earlier this week, I made an extensive statement reviewing the records of Chief Justice Roberts and Justice Alito in their confirmation hearings. Although both professed to give great deference to Congress on findings of the facts of the record, when it came to making a decision--for example, in Citizens United--their judicial views were much different.

Both Chief Justice Roberts and Justice Alito talked at length about how it was the legislative function to have hearings, compile the record and find the facts; that it was not a judicial function, and that when judges engaged in that, they were engaging in legislation. But when it came to the case of Citizens United, overturning a century of a prohibition on corporations engaging in paying for political advertising, both Chief Justice Roberts and Justice Alito found the 100,000-page record insufficient. Both of them talked about stare decisis and the value of precedent and the factors that led to the strengthening of stare decisis. Chief Justice Roberts spoke emphatically about not giving the legal system a ``jolt.'' Well, that is hardly what has happened during their tenure on the bench.

So the question which we will put to Solicitor General Kagan, among others, is, How does Congress get those promises translated into actual practice? And in making the comments about Chief Justice Roberts and Justice Alito, I do so without challenging their good faith. There is a big difference between answering questions in a Judiciary Committee hearing and deciding a case in controversy. But the question remains as to how we handle that.

As expressed in my statement earlier this week, I am very much concerned about the fact that there has been a denigration of the strong constitutional doctrine of separation of power and that we have moved to a concentration of power. That has happened by the Supreme Court taking on the proportionality and congruence test, which, as Justice Scalia noted in a dissent, is a ``flabby'' test designed for judicial legislation.

The Court has also ceded enormous powers to the executive by refusing to decide cases where there are conflicts between the executive and legislative branches. I spoke at length earlier this week about the failure of the Supreme Court to deal with the conflict between Congress's Article I powers in enacting the Foreign Intelligence Surveillance Act versus the President's authority as Commander in Chief. I did that in the context of noting that the Supreme Court has time for deciding many more cases.

These are, I think, impressive statistics. In 1886, the Supreme Court had 1,396 cases on its docket and decided 451 cases. In 1987, a century later, the Supreme Court issued 146 opinions. By 2006, the Supreme Court heard argument on 78 cases, wrote opinions in 68. In 2007, they heard argument in 75 cases, wrote opinions in 67 cases. In 2008, they heard arguments in 78 cases, wrote opinions in 75 cases.

In addition to not deciding cases such as the terrorist surveillance program and the sovereign immunities case, which I talked about extensively earlier this week, the Supreme Court has allowed many circuit splits to remain unchecked. There is an informative article in the July/August 2006 edition of the Atlantic entitled ``Of Clerks and Perks,'' written by Stuart Taylor, Jr. and Benjamin Wittes. In that article, the authors point out about how much time the Supreme Court Justices have, noting that one Justice produced four popular books on legal themes while on the bench, another is working on a $1.5 million memoir, and another Justice took 28 trips in 2004 alone and published books in 2002, 2003, and 2005.

Madam President, I ask unanimous consent to have printed in the Record the full article to which I just referred.

There being no objection, the material was ordered to be printed in the Record


Mr. SPECTER. Madam President, this raises the issue about deciding these cases where the workload is not very high, where there is a recess of some 3 months, extensive travels, and extensive lectures. Now they may do what they please, and they will, but there is a balance here. The question is: How do you get more cases decided? How do you deal with the question of having the Justices put into practice, once they are on the bench, what they are talking about in the confirmation hearings? That is hard to determine.

The best way, in my view, and I have spoken about this in some length, is by publicizing their failures. I think when we take up their budget, for example, it is fair to consider how many clerks they need, given their workload. The number started at one, went to two and three, and is now at four. Is it fair to consider the recess period? In evaluating their budget, we have to be very careful not to intrude upon judicial independence, which is the hallmark of our Republic. But on the issue of publicizing what the Court does, I think it is fair game; preeminently reasonable.

For decades now, I have been pressing to have the Supreme Court proceedings televised. Only a very limited number of people can fit inside the chamber--a couple of hundred; less than 300. People are permitted to stay there for only 3 or 4 minutes. Twice the Judiciary Committee has passed out legislation by substantial margins--12-6, and in the current term 13-6--calling on the Supreme Court to be televised.

When the case of Bush v. Gore was argued, Senator Biden and I wrote to the Chief Justice asking that the television cameras be permitted to come in. The Chief Justice declined, but did--in a rather unusual way--authorize a simultaneous audio.

There have been continuing efforts by C-SPAN to have more access to the Court, and I ask unanimous consent to have printed in the Record a document entitled ``C-SPAN Timeline: Cameras in the Court'' at the conclusion of this presentation.

The PRESIDING OFFICER. Without objection, it is so ordered.

(See exhibit 1.)

Mr. SPECTER. Madam President, I don't have time to go into it now, with the limited time available, but the reader of the Congressional Record can see how frequently the Court has denied access to even the audio.

It is a matter of general knowledge that the Supreme Court Justices engage in television interviews with some frequency. Justice Scalia, for example, appeared on the CBS News program ``60 Minutes'' on April 27 of 2008; Justice Thomas was on ``60 Minutes'' on September 30, 2007; Justices Breyer and Scalia have engaged in several televised debates, including a debate on December 5, 2006. All Justices have sat for television interviews conducted by C-SPAN.

A point I have made with some frequency on the floor of the Senate is the great importance of the Supreme Court in our government. The Supreme Court has the final word. There is nothing in the Constitution which gives the Supreme Court the final word, but they took it in the celebrated case of Marbury v. Madison, and I believe it has been for the betterment of the country. You find the inability of the Congress to act. The most noteworthy illustration of that was segregation, for years the practice in this country. The executive branch did not handle it, but the Court was able to integrate our schools in a recognition of the changing values and the flexible interpretation of a living Constitution.

It is often said that the Court is not final because they are right, but they are right because they are final. Somebody has to make these final decisions, and I think the Court should do it. But I do believe it is of great value if the people in this country understood what the Court is deciding.

Madam President, I ask unanimous consent to have printed in the Record a statement of some 11 cases entitled ``List of Cutting-Edge Decisions of the Roberts' Court.''

There being no objection, the material was ordered to be printed in the RECORD, as follows:

List of Cutting-Edge Decisions of the Roberts Court

Citizens United v. Federal Election Commission (2010). A five-four majority of the Court struck down as facially unconstitutional section 203 of the McCain-Feingold Act, despite an extensive body of Congressional findings, two Supreme Court precedents explicitly uphold section 203 (Austin (1990) and McConnell (2003)), and prohibition on corporation money in federal elections stretching back to 1907.

Parents Involved in Community Schools v. Seattle School District No. 1 (2007). In a 5-4 opinion by Chief Justice Roberts, the Court struck down narrowly tailored race-conscious remedial plans adopted by two local boards designed to maintain racially integrated school districts, contrary to a ``longstanding and unbroken line of legal authority tells us that the Equal Protection Clause [of the Fourteenth Amendment] permits local school boards to use race-conscious criteria to achieve positive race-related goals, even when the Constitution does not compel it.''

Hein v. Freedom from Religion Foundation, Inc. (2007). In a 5-4 opinion by Justice Alito, the Court held that an individual taxpayer did not have standing to challenge the constitutionality of government expenditures to religious organizations under the Bush administration's ``faith-based initiatives'' program. That conclusion ran counter to a four-decade-old precedent holding that taxpayers have standing to challenge federal expenditures as violative of the Establishment Clause (Flast v. Cohen (1968)).

Morse v. Frederick, (2007). In a 5-4 opinion by Chief Justice Roberts, the Court held that the suspension of high school students for displaying a banner across the street from their school that read ``BONG Hits 4 JESUS'' did not violate the First Amendment. That holding ran counter to a long-standing precedent, Tinker (1969), which held unconstitutional the discipline of a public-school student for engaging in First Amendment-protected speech unless it disrupts school activities.

Penn Plaza, LLC v. Pyett (2009). In a 5-4 opinion by Justice Thomas, the Court upended the Court's unanimous 1974 decision in Alexander v. Gardner-Denver Co. (1974), which held that an employee cannot be compelled to arbitrate a statutory discrimination claim under a collectively bargained-for arbitration clause to which he did not consent. The Court held otherwise in Pyett, thereby depriving many employees of their right to bring statutory discrimination claims in federal court.

Leegin Creative Leather Products, Inc. v. PSKS (2007). In a 5-4 opinion by Justice Kennedy, the Court overturned a century-old precedent holding that vertical price-fixing agreements per-se violate the federal antitrust laws.

Federal Election Commission v. Wisconsin Right to Lift (2007). In a 5-4 opinion by Justice Roberts, the Court ruled that the McCain-Feingold Act's limitations on political advertising were unconstitutional as they applied to issue ads like WRTL's (which in this case encouraged viewers to contact two U.S. Senators and tell them to oppose filibusters of judicial nominees). Justice Scalia went so far as to accuse Chief Justice Roberts and Justice Alito of practicing what he called ``faux judicial restraining'' by effectively overruling McConnell (2003) ``without expressly saying so.''

Northwest Austin Municipal Utility District v. Holder (2009). An opinion by Chief Justice Roberts discussed whether the 2006 extension of 5 of the Voting Rights Act of 1965 was supported by an adequate legislative record. Although the court ultimately decided the case on a narrow statutory ground, Roberts made clear that he was disinclined to accept Congress's legislative finding as to the need for §5, despite an extensive record amassed over ten months in 21 hearings.

Ledbetter v. Goodyear Tire and Rubber Company (2007). In a 5-4 opinion by Justice Alito, the Court ruled that Ledbetter's employment discrimination claim was time-barred by Title VII's limitations period, despite the fact that she had only recently found out that the discrimination was occurring.

Ashcroft v. Iqbal (2009) and Bell Atlantic v. Twombly (2007). In these decisions, the Court fundamentally changed the long-standing rules of pleadings under the Federal Rules of Civil Procedure while refusing to acknowledge that a change had been made. These decisions created a heightened pleading standard that may impair the ability of American to access the courts.

District of Columbia v. Heller (2008), In a 5-4 decision, the Court held that the Second Amendment guarantees an individual right to bear arms unconnected with service in a state militia, and, in doing, struck down a District of Columbia gun control law that had been in place for over three decades. The majority and minority opinion diverged sharply on the framer's original understanding of the Second Amendment.


Mr. SPECTER. There is insufficient time to go over them now, but most of them are 5-4 decisions. The Supreme Court decides everything from life to death, Roe vs. Wade to the death penalty cases and double jeopardy. These cases involve the integration issue, religious freedom, freedom of speech, collective bargaining, the antitrust laws, and all of the cutting-edge questions are decided.

It is my hope that we will find time on the Senate's agenda--with as many quorum calls as we have had we ought to find some time--to take up the issue of televising the Supreme Court. And as we approach next Monday's hearings on Solicitor General Kagan, we will be pursuing these very important issues.

In the remaining time available, one other matter which I wish to comment about--and I have sent Solicitor General Kagan three letters setting forth the areas of questioning which I intend to make--is a remarkable, perhaps unprecedented, action by the Supreme Court invalidating the Arizona clean elections law.

Arizona set up a law to provide matching funds. The District Court in Arizona declared it unconstitutional, but the Ninth Circuit overturned the district court. The district court had issued an injunction--that is, to prevent the law from being carried out--on matching funds. The Ninth Circuit reversed that. The Supreme Court--in an unusual decision, to put it mildly--earlier this month, on June 8, put the injunction back into effect.

This is in the context where there hasn't even been a petition for certiorari filed. The regular practice--the regular order--is a petition for cert, briefs, argument. That is the way cases are decided. But here, in the wake of Citizens United, invalidating a key part of McCain-Feingold, we have the Supreme Court invalidating the Arizona law without even the customary procedures.

All of this is in the face of congressional action and action by states to try to respond to public opinion. A recent Hart poll showed that some 95 percent of the American people think that corporations make contributions to exert political influence, and 85 percent of the people feel that corporations ought not to be able to contribute to political campaigns.

These are among the questions which we will be considering with the confirmation proceeding on Solicitor General Kagan. I cited at some length her law review article where she is inviting us to do so, committing at least in her law review article in 1995 to provide substantive answers and acknowledging that someone with a thin paper trail, as she has, is under more of an obligation to respond.

I note the time has expired.


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