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Nominaton of Elena Kagan to be Associate Justice of the Supreme Court--Continued

Floor Speech

Location: Washington, DC

Mr. BROWNBACK. Mr. President, I rise to discuss the nomination of Solicitor General Elena Kagan to the U.S. Supreme Court. Just over a year ago, the Senate considered the nomination of Judge Sonia Sotomayor to the Supreme Court and today we continue the debate on Solicitor General Kagan's. Then, as now, I think it is fully appropriate for us to discuss the judicial philosophy of the nominees being put forward because of the increasing intrusion of the Supreme Court into very contentious issues within the society. If that is the case, then I think judicial philosophy needs to be discussed, and I think that is one that we need to consider in this nominee in Solicitor General Kagan.

The debate and discussion of Solicitor General Kagan's nomination followed a different path from the Sotomayor nomination, but it has led me to the same result: I have too many questions about the nominee's judicial philosophy to permit me to support the nomination to a lifetime appointment to the Supreme Court of the United States.

As I said last year, a nominee's judicial philosophy is a key concern at the heart of the Supreme Court confirmation process. For me, the question is whether a nominee to the Court supports an activist judicial philosophy that would invite the judiciary into all sorts of areas of American life where it has not intruded before, or whether they hold a more deferential view of the Constitution that would limit the role of the courts. It is really that view, of what is the appropriate role of the courts under the Constitution that I think is key, given the more activist role the Court has taken in this society in recent years.

As I noted during the Sotomayor debate, in my view, democracy is wounded when Justices on the high Court, who are unelected, invent constitutional rights and alter the balance of governmental powers in ways that find no support in the text, structure, or history of the Constitution. Unfortunately, in recent years the courts have assumed a more aggressive political role.

In last year's confirmation debate, we talked a lot about whether a nominee's life story and experiences should be a significant factor in assessing that nominee. Whatever the merits of that debate, Judge Sotomayor was nominated as a Federal judge with a judicial background that offered some clues as to her judicial philosophy. With this nominee, we have comparatively little of written record to evaluate.

Solicitor General Kagan has no previous experience on the bench. If confirmed, she would be the first Supreme Court Justice without prior experience on the bench in almost 40 years. In order to hire anyone for any job, an employer looks at an applicant's past employment history. That is true for private sector jobs and public sector jobs. It is true for the staffs we maintain in the Senate and it is certainly true for Supreme Court nominees. I think most Americans would agree that prior judicial experience would be a good thing for a nominee to the Supreme Court to have. It is not a prerequisite for confirmation. Certainly, we have had Justices in the past who did not have any prior judicial experience. But I would suggest that since Solicitor General Kagan lacks prior experience on the bench, we have an obligation to look even more closely at the professional experience she does have.

There is no question she has an outstanding résumé. Few people in America can say that they have her academic credentials, including an Ivy League law degree, as well as experience teaching at the University of Chicago and as the dean of Harvard Law School. And she has terrific political credentials, including working on the Dukakis for President campaign and as a policy adviser in the Clinton administration. Unfortunately, very little of her résumé pertains to formal legal practice, let alone time on the bench.

So Solicitor General Kagan's experience is not necessarily the experience we would prefer, but it is the experience that we have to go on. And as I look through this professional experience, I see plenty of reasons to be concerned about the philosophy that she would bring to the bench.

In particular, I want to highlight her experience as a policy adviser. From the Presidential campaign trail in 1988 to the Senate Judiciary Committee to the Clinton White House, she has spent a great deal of time working on tough, highly contentious issues. In each of those cases, I think it is clear that she favors the kind of judicial activism that has concerned me throughout my time in the Senate. Her views, and the policies she has supported, endorse a role for the courts that I find very troubling. And let me be clear, whether or not I agree with her views on any particular issue, I am most concerned about the way those views will shape her still-emerging judicial philosophy.

For example, let's take a look at the life issue. As an adviser in the Clinton White House, Ms. Kagan led efforts to preserve partial-birth abortion. Obviously, I disagree with that position, as do most Americans, but that is the role that advisers often play inside the White House. Unfortunately in this case, however, the evidence shows Ms. Kagan manipulated arguments about the need for a partial-birth abortion ban and whether such a ban is constitutional. When a draft scientific statement from a medical association threatened to undermine the policy she supported, Ms. Kagan seems to have rewritten that statement in a way that did not reflect the considered medical judgment of the association but was more in line with the policy she supported. Her explanation that she was merely helping the association state its own views more accurately does not bear scrutiny. This should be a red flag for Senators considering confirmation of someone to the Supreme Court. Without a judicial track record to evaluate, I am concerned about how she would apply her personally held views on similar matters if she is confirmed.

To turn to another example, as many of my colleagues have pointed out, the scandal over military recruitment at Harvard also shows evidence of politically held views coloring the nominee's legal judgment. Ms. Kagan opposed military recruiting on campus as part of a protest against the military's don't ask, don't tell policy, even during a time of war, denying the military access to Harvard's on-campus recruiting program while the university was receiving Federal money. It was apparent at the time that she was openly defying the intent of the Solomon Amendment, but she felt comfortable defying the law in the ``hope'' that the Defense Department would simply fail to enforce it. Her argument that law schools could take such steps despite the plain intent of the Solomon Amendment was, again, primarily a political argument with very little, if any, legal standing. The Supreme Court unanimously disagreed with her.

Based on other statements she has made about issues ranging from military tribunals for detainees in the war on terrorism to political speech under the first amendment, there are numerous reasons to be concerned about how Solicitor General Kagan might apply the law as an Associate Justice of the Supreme Court.

It is worth asking whether the solicitor general has ever argued that the law should be applied contrary to her political views. Perhaps I would not have to ask that question if we could assess extensive legal writings or a history of judicial rulings. But since this nominee lacks such experience, I am left to question how Ms. Kagan would let her political views shape her judicial philosophy. The weight of the available evidence clearly suggests political motivations for her legal views.

I have long believed that the judicial branch helps itself through refraining from action on political questions. This concept was perhaps best expressed by Justice Felix Frankfurter, a steadfast Democrat appointed by President Franklin Roosevelt.

Justice Frankfurter said this:

Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures. Primary responsibility for adjusting the interests which compete in the situation before us of necessity belongs to the Congress.

I would add, not to the court.

When the courts improperly assume the power to decide issues more political than legal in nature, the People naturally focus less on the law and more on the lawyers who are chosen to administer it. Some are keen to impose their policy agendas through the judicial process. Others want judges who will stick to interpreting the law, rather than making it. It is beyond dispute that the Constitution and its Framers intended for judges to satisfy the latter criteria.

I know that many of my colleagues on the other side of the aisle have underscored Ms. Kagan's strong intellect and outstanding academic background as evidence that she would rule fairly if confirmed to the Court. Perhaps they are right. But we ought not be operating in the realm of ``perhaps'' when it comes to a Supreme Court appointment. Advise and consent is a serious matter and we have to do better than ``maybe.'' As I read about Ms. Kagan's experience and background and look for clues to her judicial philosophy, I believe it is far more likely than not that she will rely on a set of political views to guide her decisions rather than a strict construction of the Constitution. After many weeks of public debate, hearings and discussion, I cannot escape the conclusion that this nomination would only perpetuate judicial activism on the Nation's highest Court. I opposed the confirmation of Judge Sotomayor on that basis, and I will oppose Ms. Kagan's confirmation on those grounds also. I yield the floor.


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