Small Business Lending Act of 2010

Floor Speech

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Mr. SESSIONS. Mr. President, I wish to share a few thoughts on the nomination of Elena Kagan to the Supreme Court. I will share some other thoughts as we go along, and I will be producing for my colleagues a summary of some of the concerns I have about the nomination that would explain why I and a number of other Senators voted against this nomination in committee and why I think that calls for our colleagues to vote against the nomination on the floor of the Senate.

This nominee has the least experience of any nominee in the last 50 years, perhaps longer than that, having practiced law only about 2 years, right out of law school, with a large law firm, never having tried a case or argued a case before a jury of any kind, and spent 5 years in the Clinton White House, spent time teaching and being active politically. Those are issues that I think go to the basic qualities that you look for in a nomination. She had 14 months as the Solicitor General of the United States, and that is a legitimate legal job, but as I will point out, she didn't perform very well in that job and made some serious errors that I think reflect a weakness in her judicial philosophy.

So while there is no sustained legal practice that gives us a direct view of her judicial philosophy, other things do indicate it. There is plenty of evidence that I think will show this nominee is not committed to faithfully following the law. The Constitution's words say we ``do ordain and establish this Constitution for the United States,'' not some other constitution--not a European constitution, not a constitution as viewed by somebody in Argentina or France or wherever but our Constitution, passed by real Americans through the process that calls upon American input to pass that Constitution. Judges take an oath to be faithful to our Constitution. They take an oath to serve under the Constitution and laws of the United States.

So I think the evidence will show that this nominee believes judges have powers that go beyond what a judge has. This is what we have taken to calling an activist judge--a judge who believes they can advance the law, further the law, bend the law; that the Constitution is not plain words or a contract with the American people but a living document, which means they can make it grow into what they would like it to be; that they can set policy from the bench. That is not law, that is politics. Judges are required to adhere to the law. This is the great American principle that we are taught from elementary school on.

This nominee, pretty clearly, is a legal progressive and acknowledges that in her own testimony. When I asked her if she was, she didn't acknowledge it to me. But later, when she was asked again about it, she acknowledged to Senator Lindsey Graham that she was. That is what liberals have taken to calling themselves today--progressives--apparently thinking that is more popular than calling themselves liberals. I don't know why they have taken to doing that, but progressivism has a history in this country, and I think the people who call themselves legal progressives today are indeed in the tradition of progressivism that was rejected in the early part of the 20th Century by the American people.

President Obama is a legal progressive, I am convinced. He is a lawyer, a good friend, and somebody we all liked when he was in the Senate. But he has a view of the law that I think is a progressive view. He seeks, he says, to advance a ``broader vision of what America should be,'' and that is what judges should do. I am not in agreement with that. I don't think judges have that responsibility. They have never been given that responsibility. Their responsibility is to objectively decide discrete cases before them.

Some have complained that Justice Roberts somehow was an automaton by declaring that a judge should be a neutral umpire--just call the balls and strikes; that he can't take sides in the game. I think that is a very wonderful metaphor for what a judge should be--a neutral umpire.

Judges cannot take sides in the game. That is not what they are paid to do. That is not what they are empowered to do, not in the American legal system. Maybe somewhere else but not in our system. The American people understand that clearly. They are not happy with judges who legislate from the bench, who think they know better, who consult some European somewhere, with very little accompanying scientific data, to say the world has advanced and evolved and the Constitution has grown and is alive and read new words into it that were not in there before, and we can find those words and we can have a broader vision for what America should be.

I do not think that is law. It is not law, and I do not think the American people want that kind of judge.

I do not believe in this nominee's slight differences of gradations in judicial philosophy. I do not think it is just a little bit more activist and it is a little bit more advanced law philosophy, and somebody else does not and there is not much difference. I think there is a very serious difference, and it is a question of where the American people allow power to reside--power over themselves.

They can vote us out of office. I suspect people will be voted out of office this November. People are not happy with us, I can tell you that. Polling numbers show Congress is at the bottom of popularity more than it has ever been--11 percent or something. The question is, Who is that 11 percent who is happy with this crowd? Where are they? I have not met any.

I would say the American people are not enamored with the idea that somehow, when a person puts on that robe they have been anointed with greater wisdom than if they had to run for office and answer to them. If you want to be a politician, run as a politician. Don't go for it on the bench.

I think the President has an incorrect view of that, frankly, a very seriously defective view of that. In a speech in the Senate just a few years ago when he was a young new Senator, he opposed now Chief Justice John Roberts, one of the finest nominees ever to come before this Senate. What a fabulous person he was. How magnificently did he testify and what a good background he had. He was recognized as a premier appellate lawyer in America and argued 50 cases, I believe, before the Supreme Court--more than almost anybody, certainly more than anybody his age--and demonstrated the kind of skill you look for in someone who would sit on our Nation's Highest Court.

President Obama voted against him. He said he thought that in truly difficult cases Judge John Roberts would rely on precedent and try to follow the law. He said that you can't rely on precedent or ``rules of statutory or constitutional construction.'' Instead, he argued that judges must base their rulings on ``one's deepest values, one's core concerns, one's broader perspectives on how the world works and the depth and breadth of one's empathy.'' That is what President Obama said a judge should do.

I would assert that is contrary to the American heritage of law. That is not law. If you make decisions based on your deepest values--you mean the judge's deepest values? His core concerns? One's broader perspectives on how the world works and the depth and breadth of one's empathy? That is what a judge should do? Not in the U.S. order of jurisprudence, not the way I understand it, and I do not think it is the way the American people understand it either.

In a speech to Planned Parenthood, President Obama said he hoped judges would reach decisions on ``their broader vision of what America should be.''

His nomination of Ms. Kagan indicates that he believes she fits that bill. If we look at her record and speeches and background, I think it is fair to conclude she does. In a Law Review article she once declared that the Court primarily exists to look out for ``the despised and the disadvantaged.''

I think the Court is required to do justice. The oath a judge takes says a judge should do equal justice to the poor and the rich.

In another Law Review article, Ms. Kagan said, dealing with confirmation--actually the title of it was ``Confirmation Messes, Old and New.'' She quoted Stephen Carter's book, ``The Confirmation Mess'' with approval, writing:

In every exercise of interpretive judgment there comes a crucial moment when the judge's own experience and values become the most important data.

Well, I don't think so. What do you mean the judge's own values become the most important data? You mean we are ceding to the judge their personal values instead of faithfully following the law and the facts as written?

In her Oxford thesis she wrote:

Judges will often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends. Such activity is not necessarily wrong or invalid. The law, after all, is a human instrument, an instrument designed to meet men's needs.

The law is a set of commands from the government that have to be consistent with our Constitution. If they are, they should be followed, if they have been duly enacted by Congress. The American people can elect a new Congress and change those laws if they desire, but until they do so they remain the law and I do not think judges are supposed to be steering the law to promote certain ethical values.

Let me ask you, whose values are they? Whose ethical values are they? The judge's? Is that what we put them on the bench for, to be able to steer the law to promote their ethical values?

Some people wrongly say the Constitution is defined by the nine Justices on the Supreme Court. Not so, really. If we want to be cynical about it, if they are not faithful to the law, five Justices can redefine the Constitution.

Recently, four Justices voted to basically eviscerate the second amendment, saying the constitutional right to keep and bear arms was not a personal right and that the Constitution did not apply to the States and counties and cities; and in effect a city, Chicago, could have basically eliminated all guns in their city, and it would not have violated the constitutional guarantee of the right to keep and bear arms.

They just wrote it out of the Constitution, I guess--and they cited foreign law about it.

We know other cultures are not as accepting of people having guns as in the American culture. It is just different. What does foreign culture have to do with ours? This is the kind of thing we are talking about. It played out in real cases and creates a real abuse.

She goes on to say that judges will often try to mold and achieve ``certain social ends.'' Such activity, she says, ``is not necessarily wrong or invalid.''

I think it is wrong or invalid.

Am I being unfair to the nominee, Ms. Kagan? I don't think so. When asked about Ms. Kagan's record, a person in a very good position to know, Gregg Craig, former counsel to President Obama in the first year or two of the administration, who knows Ms. Kagan and who reviewed her when she was considered, apparently, for the first Sotomayor appointment, said:

She is largely a progressive in the mold of Obama himself.

I have come to believe that is exactly right. I mean, I just believe that is right. I think the President looked around the country to pick somebody young, who would serve a long time. She is 50 years old. If she serves as long as Justice Stevens whom she is replacing, she will serve 38 years. It is a lifetime appointment. It could be longer. So Mr. Gregg Craig said ``she is largely a progressive in the mold of Obama himself.''

The President was a community activist and a lawyer. He has taught some constitutional law--I am sure he is a good teacher. But if he is teaching this kind of philosophy I think it is not good, sound, judicial philosophy, and his approach I don't think is good.

I believe he looked for somebody who shared his views. As 59 Democratic Senators, he expects them to, lemming-like, go down the line and vote for whomever he puts up there, so he has put up somebody he thinks follows his views.

A second person who has been in a good position to know Ms. Kagan is Vice President Biden's chief of staff, Ron Klain, who worked in the Clinton White House closely with Ms. Kagan when she spent 5 years in the White House doing mostly policy work, as she said. This is what Mr. Klain, an experienced lawyer who has been around Washington a long time, said about her:

Elena is clearly a legal progressive. I think Elena is someone who comes from the progressive side of the spectrum. She clerked for Judge Mikva, clerked for Justice Marshall, worked in the Clinton administration, worked in the Obama administration. I don't think there is any mystery to the fact that she is, as I said, more of the progressive mold than not.

Let's just take a note there, when she graduated from law school she clerked for Judge Mikva. She is a very smart individual, a very liberal individual. I believe she clearly would be considered a judge of the activist variety. Then she clerked for Justice Marshall, a great, famous Justice on the U.S. Supreme Court but probably considered the most activist member ever to sit on the Supreme Court of the United States. That is whom she worked for.

She took a leave, I think it was a leave from her teaching position, to come to the Senate to work on the Judiciary Committee to help confirm to the Supreme Court of the United States the chief counsel for the American Civil Liberties Union, Ruth Bader Ginsburg. That is the kind of judge she has admired and worked for.

She made a speech in which she called Justice Barak of Israel, who has
been called the most activist judge in the world, her judicial hero.

I think the American people know the role of a judge. They know a judge is not empowered to legislate. They know a judge is not empowered to set policy. They know a judge is not empowered to redefine the meaning of words in the Constitution or some statute to make it say what they would like it to say in a given case that is before them. They know that is an abuse of power.

It is a violation of oath, and the American people care about it. When I talk to people, when I am in townhall meetings, people invariably ask about activist judges who are legislating from the bench. They know it is against the American view of law because these judges are unaccountable to the public. They have a lifetime appointment. They cannot be removed if you disagree with their approach. So for them to advance an ideological, philosophical social agenda from the bench frustrates democracy in a very real way, and the American people understand it.

I do not think the American people are going to hold harmless those who vote to impose a legal progressive activist legislator from the bench upon them. So I am asking my colleagues to look at this nomination carefully. Do not be a rubberstamp for the President. I am talking primarily to my Democratic colleagues now. It is your vote. It is your responsibility to make sure your constituents do not wake next year, next year, next year, and find some judge redefining the Constitution to make it say something it was never intended to say.

So do not be a lemming. Review this nomination. Be careful about it because I am afraid we have a dangerous, progressive, political-type nominee who is going to be before us. So I would call on my Democratic leadership in the Senate, let's be sure we have a good time for debate, let's not curtail it. I call on all my colleagues to come to the floor and express their views, but, most important, to ask themselves, is this nominee the kind of nominee you who will serve on the Federal bench for the next 30, 40 years who will subordinate herself and serve ``under the Constitution and laws of the United States'' as that oath says or will she feel she is just a little bit above it, and has a right to advance a social agenda or some other broader vision for what America should be that somehow Congress did not see fit to enact, the people's branch did not see fit to enact, so she should just do it anyway because Congress did not act. We should act. That is not a justification for judicial activism.

When Congress does not act, it does not act. That is a decision not to act. Courts are not empowered to set about to fix all that if they are not happy with it.

We are heading into an important period for the Congress, for the Senate. We will be looking at this nomination. The nominee was a skillful and articulate one and had a good sense of humor and handled herself in many ways well. But I think, as you hear from a number of people who studied her testimony, that it had a bit too much spin and not enough law, not enough clarity, not enough intellectual honesty to meet the high standards we should look for in a Supreme Court nominee.

We ought to be looking for the best of the best, a lawyer's lawyer, not a political lawyer, a lawyer's lawyer or a proven judge. The fact that she is not a judge is not disqualifying. But I would expect, if you are not a judge, you ought to be proven as a lawyer in the real world of law practice. This nominee simply is not. She is a political lawyer, and I do not believe she should be elevated to the Supreme Court of the United States.

I yield the floor and I suggest the absence of a quorum.

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