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Public Statements

Nominaton of Elena Kagan

Floor Speech

Location: Washington, DC


Mr. SCHUMER. I am going to speak in support of Solicitor Elena Kagan for the Supreme Court in a minute, but just for a brief minute, I wish to speak about another very important issue, the legislation we are about to vote on, the legislation that will help teachers and police officers and firefighters and other workers retain their jobs.

I wish to thank my colleagues from Maine, Senator OLYMPIA SNOWE and Senator SUSAN COLLINS, for their courageous support of this measure. I would like to take a moment to talk about the critically important component of the legislation we will be voting on shortly.

That component is called the local share language that will send critical aid directly to county governments in any State. The counties in my State are always worried. When we send the money to Albany, they never see it or they see it much later and Albany takes a cut. But legislation that I have been able to put into the bill says: If the local area pays for part of Medicaid, then they should be reimbursed directly.

Anyone who is familiar with New York knows we have some of the highest property taxes in the Nation, way too high.

In fact, residents in West Chester County have the unfortunate distinction of having paid the most in property taxes in the entire country. Nassau County residents follow quickly. On the list of the top 20 counties with the highest property taxes, 5 are in New York. This provision, which will send a total of $530 million directly to local county governments, will have a tangible and important benefit for New Yorkers everywhere. Its No. 1 job is going to prevent counties from having to raise their already too high property taxes. County executives from one end of the State to the other--in Erie County, Nassau County, and others--have told me if they can get this money, this Medicaid relief--the Medicaid burden is so high--it will enable them to not raise property taxes. That is why I fought so hard to ensure this local share language was included in the first stimulus package and now in this bill. We know money sent to Albany far too often stays in Albany. The bill will not only provide property tax relief, it is an investment in our future. It will keep teachers in the classroom and cops on the beat and firefighters in the firehouses. A recession is no excuse to prevent the children from getting the best education they can get, no excuse for letting criminals get away from the dastardly crimes they commit.

Speaking of our children and their futures, I wish to mention one more important thing. We are making these investments without adding a dime to the Federal deficit. In fact, this bill, in addition to the benefits it contains, will reduce the deficit by over $1 billion. Congress should be focused like a laser on fighting unemployment and getting the economy humming on all cylinders again. This bill is part of that ongoing effort. For the good of the country, I implore my colleagues to support this sensible, important bill.


Madam President, later today, we will confirm an exceptionally well-qualified candidate to be an Associate Justice of the Supreme Court, and average Americans will be a step closer to once again having their voices heard in the highest Court in the land. This is because Solicitor General Elena Kagan brings both moderation and practical experience to a Court sorely in need of both.

Why, then, are so many fighting over General Kagan, a nominee who is mainstream through and through? Why are so many fighting? Our judicial system is at the tipping point. Of the six most conservative Justices in living memory, four are on the Court right now. Two of those four were confirmed within the last 5 years. It didn't happen by accident. Many conservatives decry what they call liberal judicial activism, but what they want is judicial activism of the right. Make no mistake about that. There can be activists on the left and on the right. Both seek to impose their views rather than follow the law.

The supposedly staunch opposition to judicial activism on the right has shown its true colors in this debate over a truly moderate and mainstream candidate. They themselves want rightwing judicial activism to pull this country into the past.

I have always said the far right is using the only unelected branch of government to do what it cannot do through the two elected branches--turn back history to a time when corporations and large special interests had more say in our courts than ordinary people. The right has created a kind of judicial activism that is as pernicious as the activism on the left. But they do not see it that way. Activism is their very ideology.

When George Bush was President and conservative majorities in the House and Senate still couldn't pull America back 100 years, they said: We need to do it by the Supreme Court. Hence, extremely conservative nominees were nominated and approved. As a result, our Court is on a collision course with precedent, with the other branches of government and, frankly, with the American people. General Kagan is exactly the antidote we need to put the Court back on the level, to put the bubble back on the plumb. General Kagan is a 6 or 7 on a scale of conservative to liberal, with 1 being the most conservative and the most liberal being 10. The President's nominees were ones, with an occasional two. They were way over to the far right. That is what independent, objective, not Democratic, not Republican analyses show. Again, four of the five most conservative Justices are on the Court right now.

The American people are reaping the bitter harvest from new laws that have been made and old precedents that have been overturned. Put simply, in decision after decision, this conservative, activist Court has bent the law to suit an ideology. At the top of the list, of course, is the Citizens United case where an activist majority of the Court overturned a century of well-understood law that regulated the amount of money special interests could spend to elect their own candidates to public office.

In the Ledbetter case, the Court upended decades of settled law and an agency interpretation to hold that a woman who received less pay than a male colleague is only discriminated against by the first paycheck, not by the last. There are many other examples, over and over--on the Clean Water Act, punitive damages against the Exxon

Valdez, antitrust law where, again, favoring the special interests and turning back the law, this conservative majority has become the most activist Court certainly in decades. These truly activist decisions show little respect for Congress, for the executive branch, and for the well-settled understandings the American people commonly hold about our democracy. Yet somehow they label General Kagan as an activist, because she wants to follow precedent. That is not fair, and it is not true.

The record shows that General Kagan's record is replete with cases, articles, opinions, and discussion that shows and proves she is well within the judicial mainstream. First, in the course of her nomination hearing, she answered more than 700 questions. She answered them with a degree of candor and specificity we simply did not see when either Justices Alito or Roberts were before us, nominees who, I submit, actually had conservative agendas to hide from the American people, unlike General Kagan who has nothing to hide. When she was asked her views on interpreting the Constitution, she gave reasoned, detailed answers, the most reasoned, detailed answers I can remember from a nominee. She gave candid and detailed answers about her views of specific precedent governing the right to privacy, the commerce clause, freedom of the press, the second amendment, civil rights, cameras in the courtroom, even about her role as Solicitor General.

When Justice Alito was asked about his views of the takings clause, he gave an opaque answer about the value of owning private property, not even close to the specificity that General Kagan gave. But here we have Members on this side of the aisle saying they won't vote for Kagan because she is not specific enough, when they were in full support of Alito and Roberts who gave far less specific answers. Why? We know why. Again, the view on the right that they want their own brand of activism, judicial activism of the right to pull the Court and the country away from the mainstream.

My colleagues' continuing insistence that General Kagan is hiding and outside the mainstream agenda says more about their agenda than hers. It appears to me the only way to explain some of my colleagues' opposition to General Kagan is, they will vote for only ones and maybe a few twos on the Supreme Court, people way over to the right side. And if one believes in judicial activism of the far right, that is exactly what one would do.

A second sort of evidence of General Kagan's moderation is her stunningly broad bipartisan support. Each of the Solicitors General to serve under Democratic and Republican Presidents for the last 25 years has endorsed her. While at Harvard she got a standing ovation from, of all people, the Federalist Society, the training grounds for many of President Bush's conservative judicial nominees. She bridged the wide ideological divide between conservative and liberal faculty members. She brought together a faculty that had been fighting with one another. They came together under her thoughtful, pragmatic, and moderate decisions. As a result, to a Harvard faculty generally regarded as liberal, Ðshe bought in many conservative apppointments.

Why then does General Kagan not have more bipartisan support within this body? Why will she get fewer votes today than all but two Justices in the history of the Court, Justices Alito and Thomas? Again, one need look no further than the sheer amount of law that has been undone by the current Court in the last few years, law that protects ordinary Americans against special interests and corporate interests.

These are the wages of a war that the far right has mounted in order to remake the law. But General Kagan will not be a soldier in their fight and, hence, despite her moderation, does not get their vote.

Having studied the Court's decision in Citizens United, I am increasingly convinced that their war will not be won until we return to 1905, to what legal historians call the Lochner era of Supreme Court jurisprudence. In 1905, squarely in the age of the robber barons, big railroads and even bigger oil, a very conservative majority of Justices held that the people of New York, my State, could not pass laws that limited the legal workweek to 60 hours. This is because the Justices found, somewhere in the due process clause of the 14th amendment, that business had an inherent right to conduct itself without any government regulation, even if public safety was at stake. One hundred years later in Citizens United--same country, different setting, different rules--it does the same type of thing. Citizens United will go down as the 21st century example of 20th century Lochner. Allowing corporate and special interests, now because they have so much money, to pour that money into our political system without even disclosure, without even knowing who they are or what they are saying or why they are saying it, they are taking politics away, government away from the average person because of the influence of such large amounts of dollars.

Fortunately for Americans, General Kagan will be confirmed today, and gears of the time machine that is set to 1905 will be substantially slowed down. She will be confirmed with some bipartisan support, and I praise my colleagues on the other side who had the courage to break from the hard right. It takes courage to break from the extremes of either side. It is not easy. We all know that, no matter which party we are in. They have had the courage to do it. I salute them. She will be confirmed because she is mainstream, because enough of my colleagues recognize that her practical, real world experience will be a valuable asset to our judicial system and to our country.

And about practical experience, she has it in very real and tangible ways. She is an accomplished lawyer, first female dean of the Harvard Law School, a public servant who worked in all three branches of government. Yet some on the other side call her inexperienced. It is hard to believe. In fact, General Kagan's experience does measure up to her colleagues and predecessors. Like Justice Thomas and the late Justice Rehnquist, General Kagan held high-level political jobs in the executive branch. Like William O. Douglas and Felix Frankfurter, she spent much of her career in academia. And like 38 other Supreme Court Justices before her, she does not have direct judicial experience, although like many of them, she clerked for a Supreme Court Justice.

Some of my colleagues have belittled General Kagan's experience as better suited to the backwaters of academia than a seat on the highest Court. I think this is wishful thinking on their part, perhaps because they know her real world experience will bring the Court back to the center.

And, in fact, it is clear that her experience at Harvard Law School demonstrates, rather than undermines, her qualifications.

Unlike every other current Justice on the Supreme Court, General Kagan ran a business. She understands much about how the real world functions that many of our current Justices simply do not.

She managed 500 employees and a budget of $160 million annually. Plus, this real world management experience was forged in an environment that was ideologically charged when she arrived.

But it was much less so when she left. Jack Goldsmith, whom Elena Kagan hired and who had been head of President Bush's Office of Legal Counsel, wrote of her:

It might seem over the top to say that Kagan combines principle, pragmatism, and good judgment better than anyone I have ever met. But it is true.

General Kagan's skills as a consensus builder are sorely needed on a fractious Court that often struggles to find the moderate ground between its two wings. A recent study showed that last term, the Court issued ``conservative'' opinions 65 percent of the time--more than any term in living memory.

The fact that the pull to the right is so demonstrable suggests also that these decisions are often quite broad--as in the Citizens United case, where the issues that were decided had not initially been briefed. Someone as persuasive and perceptive as General Kagan could help to narrow these decisions, to put together 5 to 4 majorities that issue mainstream, modest opinions.

An important component of General Kagan's pragmatic experience is her gender. As difficult as managing an ideologically diverse law school faculty is for anyone, General Kagan did it as the first woman. I have heard it said that Ginger Rogers did everything Fred Astaire did, but backwards and in high heels.

The exact details obviously don't apply to General Kagan, but the sentiment does.

Serving as the first female dean of Harvard, and the first female Solicitor General, has surely broadened her views and deepened her understanding of how Americans work and relate to one another. Her role as a woman in each of these institutions enriches the practical experience that she will bring to the Court.

This is the candidate whom many of my colleagues have branded as an out-of-the-mainstream liberal activist.

At the end of the day, it is fine to disagree with General Kagan's views and ideology. But labeling such a mainstream candidate as a liberal ideologue sets a troubling precedent. It moves the center further and further to the right.

I am confident that General Kagan is the right candidate for the Supreme Court at the right time. I will proudly cast my vote for her.

I yield the floor.


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