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Hearing of the Senate Judiciary Committee - Nomination of Elena Kagan


Location: Washington, DC

Senator John Kerry (D-Mass.) today delivered the following remarks at the confirmation hearing of Solicitor General Elena Kagan to be the next Associate Justice of the Supreme Court of the United States:

Mr. Chairman, 16 years ago I had the privilege to introduce Stephen Breyer to this Committee.

With the loss today of Senator Byrd, I am particularly reminded of Senator Kennedy sitting beside me that day. As you know, Ted served on this Committee for 46 years -- and I know the pride he would feel seeing Elena Kagan nominated for the Supreme Court of the United States.

When Ted introduced then-Judge Breyer, he quoted Oliver Wendell Holmes that "every calling is great when greatly pursued." Those words applied to Stephen Breyer, and I can share with you my complete confidence that they apply equally to Solicitor General Elena Kagan.

Massachusetts is proud of Elena Kagan's accomplishments, and we believe that through these hearings as you get to know her as we do, she will earn broad bi-partisan support just as she did when she was nominated as Solictor General.

By now we have learned the high points of her record -- a trailblazing pace culminating in her selection as the first woman to serve as Dean of Harvard Law School and the first woman to serve as Solicitor General. If confirmed, she will make history once again. In an America where women comprise more than half the population, she'll join Justices Ginsberg and Sotomayor and for the first time in our history, a full third of the Court will be women.

But there's much more that distinguishes Elena: Her life has been characterized by her passion for public service and her awareness of what it means to be a public citizen. A close friend from her days clerking for Justice Marshall, remembers Elena interviewing at a big law firm in New York, meeting with a young partner who -- with no family to support -- was pulling in close to a million dollars a year. So Elena asked him, "What do you do with all that money." And he replied, "I buy art." Elena just shook her head in the conviction that there were better ways to expend her life's work, and she continued to pursue efforts to more directly impact the lives of those around her.

Elena's skills and intellect quickly brought her to the attention of the Clinton White House which is when I first got to know her. I'd been asked by the Chairman of the Commerce Committee to help break through a stalemate on a bi-partisan tobacco bill. It was a difficult issue for both caucuses. Elena became the Administration's point person. When we started out, no one gave us hope of getting close to passage. But Elena camped out in the Vice President's office off the Senate floor, shuttling back and forth to the White House. She worked night and day, working every angle, thinking through every approach. On the eve of the Commerce Committee's markup, things seemed to be falling apart. But Elena wasn't going to let that happen. She got together with the Republican senators and staff, listened carefully, and helped all of us to meet the last minute objections. It was classic Elena -- she saw a path forward when most folks saw nothing but deadlock. And it led to a 19-1 vote to pass the bill out of Committee -- a mark of bi-partisanship that few imagined was possible.

She was tough and stubborn when necessary, but she also knew when it was necessary to strike a compromise. She had a knack for knowing how to win people over -- an ability to make people see the wisdom of an argument. I remember lots of late nights in a very quiet Capitol building, walking off the Senate floor to meet with my staff and Elena. And, invariably, Elena would have another new idea, a fresh approach. It was a tutorial in consensus-building from someone for whom that was pure instinct -- and it won Elena the respect of Republicans and Democrats alike.

No doubt her hands-on experience working the governing process is a critical component of what makes her a terrific choice -- someone who really understands how laws are created and the real-world effects of their implementation. It's a reminder why some of the greatest Justices in our history were not judges before they sat on the highest Court -- and among those are names like Frankfurter and Brandeis.

I might add that she brought the same pragmatic knack for consensus building to her stewardship at Harvard Law. There she found what was affectionately acknowledged as a dysfunctional and divided campus -- and transformed it again into a cohesive institution, winning praise from students and faculty across the ideological spectrum. Elizabeth Warren, Elena's colleague at Harvard and Chair of the Congressional panel overseeing our relief efforts, says simply "she changed morale around here."

Charles Fried, the former Solicitor General under President Reagan and renowned conservative constitutional expert, says of her prospects as a Justice: "I think Elena would be terrific -- because, frankly, the Court is stuck. The great thing about Elena is there's a freshness about her that promises some possibility of getting away from the formulas that are wheeled out today on both sides. I have no reservations about her whatsoever."

John Manning, the first hire under Kagan's deanship -- a conservative and an expert on textualism and separation of powers says: "I think one of the things you see in Kagan as Dean was that she tried to hire folks with different approaches to law and different ideological perspectives. She was equally as strong in her praise for Scalia as she was in her praise for Breyer -- she celebrated both. It's a good predictor of how she'll be as a judge. She would be fair and impartial -- the sort of judge who would carefully consider briefing and argument in every case. The sort of judge I would want if I didn't know which side of the case I was arguing."

And so, my colleagues, I'm glad that in these next days you'll get the chance to know Elena as so many of us have in Massachusetts --as an extremely capable public servant well grounded in the Constitution, and committed to the values we all share as Americans.

I always remember what Justice Potter Stewart said about what makes a first rate judge. He said "The mark of a good judge is a judge whose opinion you can read and . . . have no idea if the judge was a man or woman, Republican or Democrat, a Christian or Jew . . . You just know he or she was a good judge." I believe Elena Kagan will meet that standard -- and I have every confidence that she'll be outstanding in every sense of the word.

Thank you, Mr. Chairman, for the privilege of introducing this fine person on this historic day.

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