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Public Statements

Executive Session

Floor Speech

Location: Washington, DC


Mr. DeMINT. Mr. President, I rise in opposition to the confirmation of Ms. Kagan to the Supreme Court, and I would like to put this opposition in context with what is going on all around the country.

All of us know, and we have seen on the news--and many of us have seen in person--that people are upset with what is happening in Washington. They are angry. They are fearful. They are frustrated at all the spending, the borrowing, the debt, the government takeovers. I keep hearing from people: What can we do? How can we stop it? Why is it happening?

That is a question we need to keep asking here: Why is it happening? Why has this country, this Congress, and many Congresses before spent this country to the edge of bankruptcy--and continue to spend week after week? Even though the President and the majority are talking every week about the unsustainable debt, almost every week we are adding to that debt, adding new programs. It makes no sense.

Our Founders believed it very important that every Member of Congress--the House and the Senate--the President, the Supreme Court, and the military officers all take an oath of office to protect and defend the Constitution. That may seem perfunctory, just something we do as a part of history. But that was not its intent because the Constitution is a document that limits what the Federal Government can do. If anyone reads it seriously, it is pretty clear its primary purpose is to limit what the Federal Government can do. It specifies a few things, such as protecting our Nation, making sure there is justice, making sure we have the rule of law and the enforcement of those laws across all of our States.

But it says a lot about what we cannot do. The whole Bill of Rights says much about what the government cannot do to take our freedoms. The 10th amendment itself says whatever is not specified in the Constitution is left to the States and the people.

Even though all of us take that oath of office, it seems to me, after being here a number of years, that just about everyone here sets aside that Bible when they put their hands down and completely forgets they have just taken an oath to protect and defend a constitution that limits what we can do.

Last year, when we passed this health care bill, Obamacare, a reporter asked Speaker Nancy Pelosi where in the Constitution did she find the authority to require people to buy a government-approved health insurance policy. All she could say is, ``Are you serious?'' In fact, if you talk about a limited constitutional government, as I often do in the Senate, you are considered a radical, even though all of us take that oath of office.

What we have turned into here--and the President has used this phrase a lot--is a ``yes, we can'' Congress. It does not matter what it is, what problem comes up all across the country, we can do it, we can fix it. Government has a solution to almost anything because we do not pay any attention to the Constitution.

The Constitution is a constitution of no, of what we cannot do. That is to protect us and to avoid where we are today, which is approaching a $14 trillion debt which is about to destroy our whole country.

Think about this: In the world's great bastion of freedom that we call America, our Federal Government owns the largest auto companies. It owns the largest insurance company. It owns the largest mortgage companies. It controls our education system. It just took over our health care system. It controls the whole energy sector and our transportation sector. The rules and regulations and taxes that we put on businesses pretty much means mostly it controls all the business activity in our country.

When Congressman PETE STARK was asked last week--in an interview we have seen all over the Internet--is there anything that the Federal Government cannot do, he said no because he had forgotten the constitutional oath of office.

What is the Court's rule, as we think about Ms. Kagan, the Supreme Court, the confirmation process? What is the role of the Court? The intent is pretty clear that it is to watch over Congress, the executive branch, to make sure we do not get outside the bounds of the Constitution. If we do, the Court is supposed to say: No, you can't; that is unconstitutional. But the Court, over the years, has pretty much thrown that responsibility out the window.

Back during FDR's days, in their interpretation of the commerce clause, it had essentially given Congress and the White House unlimited ability to do almost anything that comes up, any whim that we have. That is how we ended up with over $13 trillion in debt. I know this overactive government is really important. This idea of a limited government is very important.

When Ms. Kagan was in my office and I asked: Does the Constitution limit us from doing anything, she really could not come up with a good answer. It is pretty similar to her hearings, when Senator TOM COBURN asked her: If the Congress passed a law, and the President signed it, that every American had to eat their fruits and vegetables every day, would that be constitutional? And she said: It would be a dumb law. But she would not say that is unconstitutional.

Friends, if this government can tell us what we have to eat, it can tell us anything. We cannot claim to have any freedoms if this government can tell us what we have to eat. It is essentially the same thing as telling us we have to buy a government-approved health insurance policy. We cannot say no. But the Constitution is intended to make sure we do.

Ms. Kagan talked a lot about precedents, which are just previous court rulings, not much about the Constitution being our standard. The problem with that is a precedent is a lot like what we used to call the gossip game. Some people call it the telephone game, where you have a bunch of people sitting around a table, and the person at the head of the table whispers a phrase to the person next to them. They whisper it to the person next to them, and it goes all around the room. The whole funny part of the game is, by the time it gets back to the person who started it, you cannot even recognize the phrase. It has nothing to do with what was originally said.

That is exactly how precedent works. Once you throw the standard out, then the whole idea of a constitutional standard is out the window, if we have judges today who are making decisions by picking and choosing the precedent that agrees with their opinion rather than basing their decisions on true constitutional standards.

I oppose Ms. Kagan's nomination because she, in my opinion, does not believe in constitutional limited government. She does not believe in the original intent of the Constitution but more of President Obama's belief of a more living Constitution. As President Obama said before he was elected, he sees the Constitution as a document of negative liberties because it tells the government what it cannot do. But it does not tell us what we have to do.

It was never supposed to tell us what we have to do. But the progressives in power in Washington and many of our judges believe they need, through court rulings, to change that Constitution. What has resulted in that is the government controlling more and more of our lives, spending and borrowing money we do not have, and bringing our country to the brink of economic disaster.

We cannot afford more ``yes, we can'' judges in our country. We can cannot afford more ``yes, we can'' Senators or Congressmen. And we certainly cannot afford another ``yes, we can'' President. The decisions that have been made about our economy over the last couple of years have brought our economy to its knees. This is no longer something we can blame on President Bush. In fact, the Democrats have been in control of policymaking, economic policy spending for 4 years now. This is not Bush's recession. This is the result of Democratic economic policies.

This nomination will continue our move in the wrong direction because it will put another person on the Court who does not see their role as limiting what we can do in Congress, and this Congress desperately needs a Supreme Court that tells Congress no when we step outside the bounds of the Constitution.

Mr. President, I believe America is looking at Congress closer than they ever have before. They expect us to make the hard decisions, to stop the spending, to stop the waste, to stop the borrowing, to stop the debt, to stop the government takeovers, and to stop our courts from taking our freedoms away. That is why I am opposing Ms. Kagan to be a Supreme Court Justice, and I encourage my colleagues to consider their vote and to vote no.

Mr. President, I yield back.


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