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Public Statements

Executive Session

Floor Speech

Location: Washington, DC


Mr. THUNE. Mr. President, I rise today to speak about Solicitor General Elena Kagan's nomination to the Supreme Court of the United States.

As Members of this body are well aware, there is no other matter considered by the Senate which has such a profound impact on the constitutional landscape of our country than a lifetime appointment to the Supreme Court of the United States. When reviewing any nomination, I believe the Senate should be thorough, fair, and extensively cover a nominee's background, record, and ability to apply the Constitution and other laws as written.

To quote then-Senator Obama:

There are some that believe that the President, having won the election, should have complete authority to appoint his nominee and the Senate should only examine whether the Justice is intellectually capable and an all-round good guy; that once you get beyond intellect and personal character, there should be no further question as to whether the judge should be confirmed.

He went on to say:

I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise and consent. I believe it calls for meaningful advice and consent, and that includes an examination of a judge's philosophy, ideology, and record.

I also believe the Senate's constitutional duty of advice and consent plays one of the most important rules in protecting the Constitution and an individual's constitutional rights. While nominees should not be rejected based on their personal or political ideology, the Senate must determine whether they are prepared to put those things aside when they assume the bench. Our country deserves a Supreme Court nominee who will judge cases on the constitutional bedrock rule of law, not on their own personal feelings or a desire to legislate from the bench.

After reviewing Ms. Kagan's record, her testimony at the confirmation hearings, and having met with her personally, I am unable to support her confirmation.

As many in this body have already noted, Ms. Kagan has no judicial experience and virtually no experience with the practice of law. Before being nominated by President Obama to be Associate Justice on the U.S. Supreme Court, Ms. Kagan had never tried a case to verdict or argued an appellate case. While judicial experience is not a prerequisite for serving on the Supreme Court, a record on the bench can provide important evidence that an individual understands that the role of a judge is to impartially apply the law.

Justices who have not previously served as a judge typically have deep experience in the courtroom as practical lawyers. That type of experience can also inform how an individual might approach serving on the bench. Ms. Kagan's resume and experience offer no such evidence. She has spent almost her entire career either in partisan staff positions or in academia.

Throughout, she seems to have been a forceful advocate for liberal positions. This consistently liberal world view started early. She once wrote: ``Where I grew up--on Manhattan's Upper West Side--nobody ever admitted to voting for Republicans.'' And when referring to the politicians in her neighborhood, she wrote they were ``real Democrats, not the closet Republicans that one sees so often these days, but men and women committed to liberal principles and motivated by the ideal of an affirmative and compassionate government.''

At Princeton, Ms. Kagan wrote a thesis lamenting the decline of the socialist movement in America and later at Oxford, in another paper, supported the activist Warren Court who ``time and time again ..... asserted its right to do no less than lead the nation.''

Her non-academic career is filled with purely partisan staff positions: the Michael Dukakis Presidential campaign, special counsel to Senate Judiciary Committee Democrats, and domestic policy aide to President Clinton.

Even both of her clerkships were for strongly liberal judges: Judge Abner Mikva of the DC Circuit Court of Appeals and Justice Thurgood Marshall.

There is nothing wrong, of course, about having strong political views. The question before the Senate is whether Ms. Kagan is the type of person who can set aside those views when she puts on the black robe of a judge.

Unfortunately, her record shows that when she has found an objective reading of the law, or even medical science, that conflicted with her political goals, Ms. Kagan would choose her political goals.

A good example of this was when she led efforts to keep the brutal practice of partial-birth abortion legal, while serving as an adviser to President Clinton.

While there are many different opinions on abortion policy, an overwhelming majority of Americans believe that the gruesome procedure is one that is not acceptable and in fact federal law bans this practice with the exception of saving the mother's life.

After President Clinton vetoed Congress's first attempt at a ban and Congress was again debating the procedure, Ms. Kagan urged the President to support an alternative she believed was unconstitutional.

Additionally, when she was confronted with a draft scientific statement from a medical association that would undermine her preferred policy, she decided to rewrite the statement so that it aligned more with her preferred policy goals, as opposed to the association's medical judgment.

At her hearing Ms. Kagan confirmed she had no medical training when she rewrote their statement, but said she was merely helping the medical association more accurately state its own medical views.

Unfortunately, medical experts disagree with her assertion.

Former Surgeon General C. Everett Koop has said that ``no published medical data supported her amendment in 1997, and none supports it today.''

Further, he believes Ms. Kagan's rewriting of the opinion was in fact ``unethical, and it is disgraceful, especially for one who would be tasked with being a measured and fair minded judge.''

Ms. Kagan has even been unable to separate her partisan political viewpoint from her time in academia, most notably her time as dean of the Harvard Law School when dealing with military recruiters.

While dean, Ms. Kagan was confronted with the Federal law requiring schools receiving Federal funds to give equal access to military recruiters.

Instead of requiring Harvard Law School to comply with the plain reading of the law, she continued to deny the military access to Harvard's on-campus recruiting program, while accepting Federal funds.

She even signed on to an amicus brief to the Supreme Court which argued that noncompliance was in fact compliance.

This argument was so flawed, and based purely on her personal opposition to the law enacted by President Clinton and a Democratic Congress, that the Supreme Court unanimously rejected it and said her construction was ``clearly not what Congress intended.''

As Solicitor General, when faced with the proposition of defending the federally enacted don't ask, don't tell policy after the liberal Ninth Circuit Court of Appeals issued a decision against the policy and required a costly trial, Ms. Kagan again chose to follow her personal beliefs and allowed for the trial, which is unfavorable to the military and current law, to go forward.

At her confirmation hearings, when asked about this decision, she said she allowed the trial to go forward because it would allow for the development of a fuller record in support of the government's best interest.

The problem is that the district court records clearly contradict this position.

According to the plaintiff's lawyers in this case, Ms. Kagan herself told them ``loud and clear'' that further discovery would be bad for the government's interests.

It is clear to me that Ms. Kagan considers herself a ``real Democrat'' committed to liberal principles and has, at no time, shown an ability to separate her personal beliefs from the job at hand.

Again, practical judicial and courtroom experience is not necessary, but what is critical is the ability to serve with impartiality.

Unfortunately, I have nothing but Ms. Kagan's word to indicate that she will be able to do so, nothing to show that she can apply the law to the facts and not her ideology to the law.

At this time in our Nation's history, when the size of government has exploded and spending is out of control, we need more than her word.

We need concrete evidence that she will be more than a politically motivated ideologue on our highest Court.

We need a Supreme Court Justice that is willing to apply the constitutional principles of a limited government with limited powers.

We need a Supreme Court Justice that does not believe Congress has the right to pass overreaching laws requiring Americans to eat three fruits and three vegetables a day, something she suggested at her hearing Congress has the power to do.

When pushed on the outer limits of federal power, Ms. Kagan said ``I would go back, I think, to Oliver Wendell Holmes on this. He ..... hated a lot of the legislation that was being enacted during those years, but insisted that, if the people wanted it, it was their right to go hang themselves.''

For our system of government to work as intended by the Framers, each branch of government must do its job.

It is the job of the courts to apply the law, including the constitutional limitations on Federal power.

When Ms. Kagan says that the people have ``the right to go hang themselves,'' she is suggesting that the Supreme Court should not do its job, that it should let Congress claim whatever power it wants.

That is not what the Constitution says and it is not what is in our Nation's ultimate interest.

Freedom and limited government must endure; they must not be cast aside because a temporary electoral majority finds them inconvenient.

Our Founders intended for our Supreme Court Justices to be more than a rubberstamp to a particular ideology, administration, or political party.

I cannot trust that Ms. Kagan will be more than this, and consequently am left with no other choice than to oppose her confirmation.

I yield the floor.


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