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Public Statements

Kagan Nomination

Floor Speech

Location: Washington, DC

Mr. BUNNING. Mr. President, today I rise to speak on the nomination of Solicitor General Elena Kagan to be a Justice on the United States Supreme Court.

After much consideration, I cannot support this nomination. I have been following this progress very closely. I have been reading her memos and other documents from her career, and I watched her confirmation hearings before the Senate Judiciary Committee. I met with her one on one and was able to ask her eight different questions. Unfortunately, I find her unsuitable to serve a lifetime appointment as a member of the U.S. Supreme Court.

When I spoke on the nomination of Justice Sotomayor last year, I pointed out the problems of the Supreme Court and other judges trying to replace Congress and State legislatures. Important social issues have been taken out of the political process and decided by unelected judges. I can say for certain that this is not the way the Founding Fathers and the authors of the Constitution intended for it to work. The creation of law is reserved for elected legislatures chosen by the people. The Supreme Court is not a nine-person legislature created to interact with or replace the U.S. Congress.

When judges and Justices take the law into their own hands and act as if they are a legislative body, it flies in the face of the Constitution. Because of this, whether it is the Supreme Court or the lower courts, many people have lost respect for our judicial system. This cannot continue to happen.

In addition to the obvious constitutional concerns, if some day the public and the rest of the political system

begin to tune out the courts and ignore their decisions altogether, it would be very dangerous for our country. I opposed Justice Sotomayor's nomination because I did not feel she understood this. I am afraid I have to say the same for Ms. Kagan.

The first problem I wish to discuss is her lack of experience. According to a Congressional Research Service analysis, Justices without prior judicial experience practiced law for an average of 21 years before their appointment to the Supreme Court. Recent polls have shown that an overwhelming majority of Americans feel that prior judicial experience is an important qualification to be a Justice on the Supreme Court.

Of modern Supreme Court Justices, former Chief Justice William Rehnquist was the last person nominated without judicial experience, and that was almost 40 years ago. However, Chief Justice Rehnquist was a practicing attorney for years prior to his nomination.

Ms. Kagan herself said:

It is an embarrassment that the President and Senate do not always insist, as a threshold requirement, that a nominee's previous accomplishments evidence an ability not merely to handle but to master the ``craft'' aspects of being a judge.

Prior to her appointment to the Solicitor General's job in 2009, Ms. Kagan was a stranger to the courtroom. She never tried a case to verdict or served as a judge. She argued her first case as a lawyer less than 1 year ago. While Ms. Kagan has a very extensive background in the law, both academically and politically, I do not believe she has mastered the craft of judging.

I have serious concerns that Ms. Kagan will have a very hard time separating her personal views from the legal interpretation of the Constitution. While Ms. Kagan was dean of Harvard Law School, she banned military recruiters from the Harvard campus during a time of war because she believed the don't ask, don't tell law, developed by the Clinton administration in which she served--she called it a ``moral outrage'' of the ``first order.''

She worked for Bill Clinton in his administration. She argued that the Solomon amendment, which Congress passed, despite its plain text and plain congressional intent behind it, allowed law schools to bar access to military recruiters. Ms. Kagan herself wrote an e-mail to the Harvard community that in barring recruiters, she was acting in the hope that the Federal Government would choose not to enforce the law of the land. I find it very troubling that a nominee to the Supreme Court would change school policy and disregard Federal law during a time of war because of her own personal beliefs. Fortunately, not a single Supreme Court Justice agreed with her position and noted that her interpretation was rather clearly not what Congress had in mind.

As associate White House counsel to President Bill Clinton, Ms. Kagan played a critical role in the debate over partial birth abortions and did everything she could to halt legislation going through Congress to ban that horrible procedure. She worked with the medical groups supporting the practice, rewriting their scientific conclusions to better reflect her preference on partial-birth abortion. The Supreme Court relied on this language in their decision to overturn a Nebraska law banning this procedure. It appalls me that someone with no medical background would try to alter scientific conclusions to defend such a monstrosity of a procedure.

In one memo, she advised President Clinton to support a Democratic alternative in order to ``sustain [his] credibility on [the issue] and prevent Congress from overriding [his] veto.'' This is concerning behavior from someone who now wishes to serve on the highest Court in the land. If she was willing to rewrite scientific conclusions, who is to say how far she would go with rewriting the Constitution?

I also have serious concerns about Ms. Kagan's hostility to second amendment rights. While she was clerking for the Supreme Court Justice Thurgood Marshall, Ms. Kagan was asked to consider a case similar to the 2008 Heller case, in which the Court struck down the DC gun ban and found that the second amendment confers an individual right to keep and bear arms. In examining this earlier case, Sandidge v. U.S., she wrote that:

Mr. Sandidge's sole argument is that the District of Columbia's firearm statute violates his constitutional right to ``keep and bear arms.'' I am not sympathetic.

Those were her words.

It is not the job of the Supreme Court or any other court of the land, for that matter, to be sympathetic. That belongs best in legislatures which can reflect the wishes of the people who voted for the Members of those bodies.

Recently, supporters of individual rights and liberties won an important victory when the Supreme Court ruled in the McDonald case that the second amendment was a fundamental right that is binding to all the States. I fear her appointment to the Supreme Court could undo the progress from the Heller and McDonald decisions that recognize Americans have the right to defend themselves. Throughout her confirmation hearings, Ms. Kagan repeatedly stated she would accept the Heller and McDonald decisions as settled law. In her confirmation hearings, Justice Sotomayor also appeared to accept the second amendment rights. Specifically, Justice Sotomayor said she understood `` ..... the individual right fully that the Supreme Court recognized in Heller.'' However, in her first year on the Court, she joined the dissenting opinion in McDonald saying:

I can find nothing in the Second Amendment's text, history, or underlying rationale that could warrant characterizing it as ``fundamental'' insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes.

Finally, I was not satisfied with Ms. Kagan's responses regarding the commerce clause and the limits of power of the Federal Government. Right now, we have the government taking over each sector of our economy, from banking, as the majority leader and minority leader spoke about, and the auto bailouts, which they both spoke about, to an unprecedented takeover of our health care system. In her testimony, Ms. Kagan left no doubt that she sees virtually no limit on congressional power. This is extremely frightening to me, to say the very least.

The Framers of the Constitution made it very clear what the role of the Court should be. Anyone appointed to the Supreme Court must be willing to evaluate laws as they are written under the plain meaning of the Constitution. A Justice should not be appointed in order to achieve specific results in any case. We have no judicial record of Ms. Kagan's to look at to see how she would rule in any of these such cases. We only have a record as an academic and a political adviser to look at as her qualifications to be a Supreme Court Justice. While Ms. Kagan has a very impressive background, I do not have faith that she would fully respect the roles of the judiciary and the legislative branch.

I am very sorry to say for just the second time while serving in the Senate that I will have to oppose a nomination to the Supreme Court, and I am not happy to do so. However, it is the constitutional role of the Senate to provide confirmation for this position and my duty as a Senator to be a part of this process. On viewing the record of Solicitor General Kagan, I do not find her to be a suitable candidate for a Justice of the Supreme Court of the United States and will vote against her whenever the Senate considers her nomination.

I thank the President, yield the floor, and note the absence of a quorum.


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