Nomination Of Elena Kagan To Be Associate Justice Of The Supreme Court Of The United States - Continued

Floor Speech

By:  Lindsey Graham
Date: Aug. 3, 2010
Location: Washington, DC


Mr. GRAHAM. Madam President, I appreciate the kind comments of the Senator from Minnesota. I have enjoyed working with her on the committee and hope to be able to work with her on a lot of different topics, including confirming judges.

My view of Elena Kagan is quite simple. I found her to be a good, decent person; well qualified in terms of her legal background to sit on the Court. The people who know her the best, who worked with her, have nothing but good things to say about her. She is not someone a Republican President would have picked--she is definitely in the liberal camp when it comes to judging--but I think within the mainstream of the left wing of the Court.

The Court has two wings to it. A lot of decisions are--not a lot, some decisions are 5-4. But you know who the conservatives on the Court are and you know who the liberals are. The one thing they have in common is that they are highly qualified, great Americans who happen to view the law a bit differently in terms of philosophy. But they have brought honor to the Court.

Justice Ginsburg is definitely in the left wing of the Court. Justice Scalia is definitely in the right wing of the Court. From what I have been told, they have a deep personal friendship; that Justices Scalia and Ginsburg have become fast friends and admire each other even though they often cancel out each other's vote and they have some real good give and take in their opinions. In that regard I think they represent the best in judging and the best in our democracy, and that is two different philosophies competing on the battlefield of ideas but understanding that neither one of them is the enemy. They have a lot of respect for each other.

What brought me to the conclusion to vote for Solicitor General Kagan? I
believe the advise and consent clause of the Constitution had a very distinct purpose. Under our Constitution, article 2, it allows the President of the United States to appoint Supreme Court Justices and judges to the Federal bench in general. That is an authority and a privilege given to him by the Constitution. You have to earn that by getting elected President.

After having watched Senator McCain literally about kill himself to try to be President, I have a lot of admiration for those who will seek that office. It is very difficult to go through the process of getting nominated and winning the office. I daresay that Senator McCain would indicate it is one of the highlights of his life to be nominated by his party and to go out and fight for the vote of the American people.

Senator Obama was a Member of this body before being elected President. I can only imagine what he went through, going through the primary process, beating some very qualified, high-profile Democrats to get the nomination of his party. When it was all said and done, after about $1 billion and a lot of sweat and probably sleepless nights, he was elected by the people of the United States to be our President. I want to honor elections.

My job, as I see it--and I am just speaking for me--each Senator has to determine what they believe the advise and consent clause requires. From my point of view I will tell you what I think my job is in this process. No. 1, it is not to be a rubberstamp. Why would you even have the Senate involved if the President could pick whomever he or she chose? So there is a collaboration that goes on here. There is a check and balance in the Constitution where we have to advise and consent. So I do not expect myself or any other Senator to feel once the election is over, you have to vote for whomever they pick. You do not. There may be a time when I vote ``no'' to a President Obama nominee.

But my view of things is sort of defined by the Federalist Paper No. 76, Alexander Hamilton, who was one of our great minds of this country's history. He said, ``The Senate should have special and strong reasons for denial of confirmation.''

I think his comment to us is that, yes, you can say no, but you need to have a special and strong reason because the Constitution confers upon the President the right to pick. What would those strong and special reasons be? Whatever you want it to be. That is the fact of politics. Those strong and special reasons can literally be whatever you want it to be as a Senator. But here is what Alexander Hamilton had in mind as to strong and special reasons. He continued:

To what purpose, then, require the cooperation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation.

I think that powerful and silent operation is meant to be a firm but not overly political check and balance; not a continuation of the campaign. Because the campaign is a loud experience. It is 50 plus 1, rah-rah-rah, build yourself up, tear your opponent down. So when Alexander Hamilton indicated to the Senate his view of the advise and consent clause, that it would be powerful, though in general a silent operation, I think he is telling us: The campaign is over. Now is the time to govern. So when this nominee comes your way from the person the Constitution confers the ability to pick and choose, you should have in mind a powerful but silent operation.

``It would be an excellent check upon a spirit of favoritism. .....'' I think that is pretty self-evident, that one of the things we do not want to have with our judiciary is it becomes an award or prize for somebody who helped in the campaign, picking somebody who is close to you personally, related to you, so that the job of Federal judge becomes sort of political patronage. The Senate could be a good check and balance for that. I think that is one of the reasons we are involved in the process, to make sure that once the election is over, the President himself does not continue the campaign. The campaign is over and we have a silent operation in terms of how we deliver our advice and consent. So he is telling the President through the Senate that once the campaign is over, you should not pick someone who will help you politically or return a favor; you should pick someone who will be a good judge.

It ``would tend greatly to prevent the appointment of unfit characters from State prejudice.'' That is another view that Alexander Hamilton had, as to how the Senate should use its advise and consent duties, to make sure that unfit characters do not go on the Court. I can imagine that has probably been used in the past.

``From family connection,'' that one is obviously self-evident. You don't want to pick someone from your family unless there is a good reason to do so. ``[F]rom personal attachment or from a view to popularity.''

When I add up all these things, I am looking at the necessity of their concurrence with a: ``powerful, though, in general, silent operation. It would be an excellent check upon the spirit of favoritism ..... to prevent the appointment of unfit characters ..... from family connection, from personal attachment, or from a view to popularity.''

In other words, we are trying to make sure the President, he or she, picks a good, qualified judge, not some unfit character, some person tied to him or her personally, not someone who would be a popular choice but would be a lousy judge.

When I apply that standard to Elena Kagan, I cannot find anything about her that makes her an unfit character to me. Frankly, what I know about her from listening to her for a couple of days and having people tell me about her is I think she is a very fine person with stellar character.

The letter that moved me the most about Elena Kagan the person, I wish to share with the Senate and read, if I may. This comes from Miguel Estrada. For those of you who may not remember, Miguel Estrada was chosen by President Bush to be on the court of appeals. For a variety of reasons--there is no use retrying the past--he never got a vote by the Senate. He never got out of committee. All I can say from my point of view is, it was one of the great mistakes. I am sure there have been times when Republicans have done the same thing or something like it to a well-qualified Democratic selection. But I happened to be here when Miguel Estrada was chosen by President Bush. So he had a very unpleasant experience when it came to getting confirmed as a judge. But here is what he wrote about Elena Kagan, a Republican conservative lawyer chosen by President Bush to be on the court of appeals, writing for Elena Kagan:

I write in support of Elena Kagan's confirmation as an Associate Justice of the Supreme Court of the United States. I have known Elena for 27 years. We met as first year law students at Harvard, where we were assigned seats next to each other for our classes. We were later colleagues as editors of the Law Review and as law clerks to different Supreme Court Justices; and we have been friends since.

Elena possesses a formidable intellect, an exemplary temperament, and a rare ability to disagree with others without being disagreeable. She is calm under fire and mature and deliberate in her judgments. Elena would also bring to the Court a wealth of experience at the highest level of our Government and of academia, including teaching at the University of Chicago, serving as the Dean of the Harvard Law School and experience at the White House and as the current Solicitor General of the United States. If such a person, who has demonstrated great intellect, high accomplishments and an upright life, is not easily confirmable, I fear we will have reached a point where no capable person will readily accept a nomination for judicial service.

I appreciate that considerations of this type are frequently extolled but rarely honored by one side or the other when the opposing party holds the White House. I was dismayed to watch the confirmation hearings for then-Judge Alito, at the time one of our most distinguished appellate judges, and find that they range from the--

Well, I am not going to read it all.

..... one could readily identify the members of the current Senate majority, including several who serve on the Judiciary Committee [and their partisan views].

Lest my endorsement of Elena's nomination erode the support she would see from her own party, I should make it clear that I believe her views on the subjects that are relevant to her pending nomination--including the scope of judicial role, interpretive approaches to the procedure and substantive law, and the balance of powers among the various institutions of government--are as firmly center-left as my own are center-right. If Elena is confirmed, I would expect her rulings to fall well within the mainstream of current legal thought, although on the side of what is popularly conceived as ``progressive.'' This should come as a surprise to exactly no one: One of the prerogatives of the President under our Constitution is to nominate high federal officers, including judges, who share his (or her) governing philosophies. As has often been said, though rarely by Senators whose party did not control the White House at the time, elections have consequences.

Elena Kagan is an impeccably qualified nominee. Like Louis Brandeis, Felix Frankfurter, Robert Jackson, Byron White, Lewis Powell and William Rehnquist--none of whom arrived at the Court with prior judicial service--she could become one of our great Justices. I strongly urge you to confirm her nomination without delay.

I think that says a lot of Elena Kagan. I think it says a lot about Miguel Estrada. She wrote a letter basically--I asked her to--to tell me what she thought about Miguel Estrada. I will read that in a minute. But at the end of the day, those of us in the Senate have to understand that every branch of government includes human beings and there is a rule that stood the test of time. I didn't make this one up. It was somebody far wiser than I am, somebody far more gifted than I ever hope to be, somebody I put a lot of trust in.

It is called the Golden Rule. ``Do unto others as you would have them do unto you.'' That is probably one of the most powerful statements ever made. It is divine in its orientation, and it is probably something that would serve us all well if we thought about it at moments such as this.

I am going to vote for Elena Kagan because I believe constitutionally she meets the test the Framers envisioned for someone to serve on the Court. I don't think the Framers ever envisioned Lindsey Graham from South Carolina voting no because President Obama picked someone who is clearly different than I would have chosen. Because if that were the case, the campaign never ended. It would undercut the President's ability to pick someone of like philosophy. My job is to make sure the person he chose is qualified, of fit character, not chosen for favoritism or close connection but chosen based on merit.

I have no problem with Elena Kagan as a person. I have no problem with her academic background. I have no problem with her experience as a lawyer. Even though she has worked for Justices whom I would not have ruled like, even though she has taken up political causes I oppose, that is part of democracy.

Her time as Solicitor General, where she represents the United States before the Supreme Court, was reassuring to me. She has had frontline experience in the war on terror. She has argued before the Supreme Court that terrorist suspects should be viewed under the law of war. She supports the idea that someone who joins al-Qaida has not committed a crime. They have taken up arms against the United States, and they can be held indefinitely without trial if, under proper procedures, they have been found to be part of the enemy force. She understands detainees held at Bagram Airfield in Afghanistan should not be subject to judicial review in the United States because they are prisoners of war in an active theater of combat. If she gets on the Court--and I am certain she will--she will be able to bring to the Court some frontline, real-world experience in the war on terror. She has had an opportunity to represent the United States before the Supreme Court, arguing that this Nation is at war, and the people who attacked us on 9/11 and who continue to join al-Qaida are not some common criminals but people subject to the law of armed conflict. Her testimony when she was confirmed as Solicitor General was reassuring to me that she understood that very important concept.

How she rules, I don't know. I expect she will be more similar to Justice Stevens in the way she decides cases. The person she is replacing is one of the giants of the Court from the progressive side. I expect she will follow his lead most of the time. I do believe she is an independent-minded person. When it comes to war on terror issues, she will be a valuable member of the Court and may provide a perspective other judges would not possess. That is my hope.

I don't vote for her expecting her to do anything other than what she thinks is right, ruling with the Court most of the time in a way a Republican nominee would not have ruled. It gets back to my point of a minute ago. If I can't vote for her, then how can I ask someone on the other side to vote for that conservative lawyer, maybe judge, who has lived their life on the conservative side of the aisle, fighting for conservative causes, fighting for the pro-life movement, standing for the conservative causes I believe in, a strong advocate of a second amendment right for every American? That day will come. I hope sooner. But one day that day will come. What I hope we can do from this experience is remember that when that day does come, the Constitution has not changed at all. The only thing changed was the American people chose a conservative Republican President. I ask my colleagues to honor that choice, when that conservative President, whoever he or she may be, picks someone whom my colleagues on the other side would not have chosen. But that has been the way it has been for a couple hundred years now.

Justice Ginsburg, the ACLU general counsel, got 96 votes. Justice Scalia got 96 or 97 votes. Senator Thurmond, my predecessor, voted for Justice Ginsburg. There is no way on God's green Earth Strom Thurmond would have voted for Justice Ginsburg if he believed his job was to pick the nominee. There is no way many of my colleagues on the other side would have ever voted for Justice Scalia if they thought it was their job or they had the ability to make a selection in line with their philosophy. No one could have been more polar opposite than Ginsburg and Scalia. But not that long ago, in the 1990s, this body, without a whole lot of fussing and fighting, was able to put on the Court two people who could not be more different but chose to be good friends.

The history of confirming nominees to the Supreme Court is being lost. Madam President, 73 of the 123 Justices who served on the Supreme Court were confirmed without even having a rollcall vote. Something is going on. It is on the left, and it is on the right. I hope this body will understand one thing: The judiciary is the most fragile branch of government. They can't go on cable TV and argue with us as to why they are qualified. They cannot send out mailings advocating their positions. They have no army. All they have is the force of the Constitution, the respect of the other branches and, hopefully, the support of the American people.

Having gone to Iraq and Afghanistan many times, the one thing I can tell my colleagues that is missing in most countries that are having difficult times is the rule of law. What is it? To me, the rule of law is a simple but powerful concept. If you ever find yourself in a courtroom or before a magistrate or a judge, you will be judged based not on what tribe you came from. You will be judged based on what you did, not who you are.

The one thing we don't want to lose in this country is an independent judiciary. We are putting the men and women who are willing to serve in these jobs sometimes through hell. Judge Alito was poorly treated. I am very proud of what Senator Sessions was able to do as ranking member. We had a good, spirited contest with Sotomayor and Kagan. I thought the minority performed their role in an admirable fashion. I appreciate what Senator Leahy did working with Senator Sessions. I thought these two hearings were conducted in the best traditions of the Senate.

The votes will be in soon. She is going to get a handful of votes on our side. I have chosen to be one of those handful. From a conservative point of view, there are 100 things one can find at fault in terms of philosophy and judicial viewpoint with Elena Kagan. I have chosen not to go down that road. I have chosen to go down a different path, a path that was cleared and marked for me long before I got here, a path that has a very strong lineage, a path that I believe leads back to the Constitution, where the advice and consent clause is used in a way not to extend the election that is now over but as a reasonable, powerful but silent check on a President who chose a judge for all the wrong reasons. Choosing a liberal lawyer from a President who campaigned and governs from the left is not a wrong reason. Choosing a conservative lawyer or judge once you campaign for the job running right of center, in my view, is not the wrong reason. The wrong reason would be if the person you chose was not worthy of the job, did not have the background or the moral character to administer justice. I cannot find fault with Elena Kagan using that standard.

I will vote for her. I will say to anybody in South Carolina and throughout the country who is listening: She is not someone I would have chosen, but it is not my job to choose. It is President's Obama's job. He earned that right. I have no problem with Elena Kagan as a person. I think she will do a good job, consistent with her judicial philosophy. I hope and pray that the body over time will get back to the way we used to do business. If we don't watch it, we are going to wake one day, and we will politicize the judiciary to the point that good men and women, such as Sam Alito, Justice Roberts, and Elena Kagan, will not want to come before this body and be a judge. If that ever happened, it would be a great loss to this country.

I suggest the absence of a quorum.


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