American Jobs and Closing Tax Loopholes Act of 2010--Continued

Floor Speech

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Mr. WICKER. Mr. President, I rise today to speak briefly on the upcoming hearings the Judiciary Committee will hold on President Obama's nomination of Elena Kagan to be a Justice on the U.S. Supreme Court. I am not a member of the Senate Judiciary Committee, and I do not envy the difficult task before the committee members. However, I would like to highlight a few things I will be watching, as a Member of this body with the constitutional duty to advise and consent, and listening for as Ms. Kagan's nomination hearings begin on Monday.

First and foremost, I will be listening for indications on how closely Ms. Kagan will adhere to the Constitution and the laws of our Nation as written. The judicial oath requires judges to apply the law impartially to the facts before them--without respect to their social, moral, or political views.

Although Ms. Kagan certainly has an impressive resume in academia and as a political adviser in the Clinton and Obama administrations, she lacks key courtroom experience as either a judge or as a private lawyer. Therefore, it is appropriate and vitally important that members of the committee perform their due diligence to question her judicial philosophy.

This is a line of questioning that Ms. Kagan herself has endorsed. In a 1995 University of Chicago Law Review article, she wrote:

The kind of inquiry that would contribute most to understanding and evaluating a nomination is ..... discussion first, of the nominee's broad judicial philosophy and second, of her views on particular constitutional issues. By ``judicial philosophy'' ..... I mean such things as the judge's understanding of the role of courts in our society, of the nature and values embodied in our Constitution, and of the proper tools and techniques of interpretation, both constitutional and statutory.

I could not agree more with Ms. Kagan. I hope she will live up to her own measuring stick and provide the Senate with the open and constructive answers which she has herself advocated.

In addition to her general judicial philosophy, I hope my colleagues on the Judiciary Committee will question Ms. Kagan on two specific issues important to many Americans and many of my constituents in the State of Mississippi; that is, her views on abortion and the second amendment.

I am concerned that many of the documents from Ms. Kagan's service as a law clerk for the late Justice Marshall and as a political adviser during the Clinton administration reflect a troubling bias.

Two years ago, the Supreme Court ruled, in District of Columbia v. Heller, that the second amendment guarantees an individual's right to keep and bear arms. Ms. Kagan has said publicly that she views Heller as settled precedent of the Court. But as a law clerk for Justice Marshall, Ms. Kagan wrote a strikingly personal memo on gun rights.

The case in question on that earlier occasion challenged the District of Columbia's handgun ban that was markedly similar to the Heller case. In her 1987 memo urging Justice Marshall to vote against hearing the case, Ms. Kagan stated:

[The petitioner's] sole contention is that the District of Columbia's firearm statutes violate his constitutional right ``to keep and bear arms.'' I'm not sympathetic.

The recommendation itself is troubling, but the personal note she employed is even more disturbing. Rather than pointing to text and precedent, rooting her analysis in law or looking to the Constitution, Ms. Kagan chose the personal pronoun saying: ``I'm not sympathetic.''

This should concern Senators because it seems to indicate a personal aversion to the right to bear arms. I hope members of the committee will question Ms. Kagan on this issue.

Ms. Kagan's work in the Clinton administration raises further questions about her views of the second amendment. According to records at the Clinton Presidential Library in Little Rock, Ms. Kagan was a key adviser to President Clinton on gun control efforts. She drafted an Executive order restricting the importation of certain semiautomatic rifles and was involved in the creation of another order requiring all Federal law enforcement officers to install locks on their weapons. She advocated various other gun control proposals, including gun tracing initiatives, legislation requiring background checks for all secondary market gun purchases, and efforts to design a gun that would automatically restrict the ability for most adults to use it.

In a May article, the Los Angeles Times put it this way:

As gun rights advocates viewed it, there was one clear message: The Clinton White House wanted to remove as many guns from the market as it could.

Records show that Ms. Kagan was a key player in this effort.

I believe the upcoming hearings present an opportunity to hear more about Ms. Kagan's views on the second amendment--a right clearly enumerated in the Bill of Rights--and whether she views it as binding on all levels of government. I am confident I will not be the only one following her answers closely.

With regard to the second issue, with regard to abortion, Ms. Kagan, having neither served as a judge nor spent any significant time in a courtroom, lacks a judicial record to give us insight into her views on abortion. But there are several red flags that show the need for pointed questions from Judiciary Committee members on this issue.

First, Ms. Kagan has extensively criticized the 1991 Supreme Court decision Rust v. Sullivan, where the Court upheld the constitutionality of the Department of Health and Human Services' regulations that prohibit title X family planning funds from being ``used in programs where abortion is a method of family planning.''

The rulings in that case and others like that case are absolutely vital to protecting the unborn. Congress has the constitutional duty to maintain the power of the purse. If, as Ms. Kagan argues, that authority should be limited in the name of free speech, then the American people will lose the ability for their elected Representatives to prohibit abortion funding and provide any balance to the executive branch.

One of the most noteworthy issues on which Ms. Kagan advised President Clinton during her time at the White House was partial-birth abortion--a truly reprehensible procedure. Memos from Ms. Kagan to President Clinton indicate she believed partial-birth abortion is constitutionally protected. I have profound concerns about that point of view and believe this raises serious questions about how she would interpret the Constitution if confirmed to the Supreme Court.

In closing, there is no doubt these are important issues deserving lengthy and deliberate consideration by the Senate Judiciary Committee, particularly for a lifetime position on the highest Court in our Nation.

I hope Ms. Kagan will adhere to her own advice and be open and forthright with the committee as to her judicial philosophy and views on the specific constitutional questions I have mentioned. I look forward to joining many Americans in closely following Ms. Kagan's responses.

I yield the floor.

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