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Nomination of Elena Kagan to be Associate Justice of the Supreme Court of the United States--Continued

Floor Speech

Location: Washington, DC


Mr. VOINOVICH. Mr. President, I rise to speak on the nomination of Solicitor General Elena Kagan to be an Associate Justice of the U.S. Supreme Court. I will not support General Kagan's nomination. I did not come to this decision lightly. As I said last August during the debate on Justice Sotomayor, the role of the Senate in the nomination of a Supreme Court Justice is to give its advice and consent on the President's nomination, with the Senate to judge whether an individual is qualified based on a number of factors. Among these factors are the nominee's education, legal experience, prior judicial experience, written record, judicial temperament, commitment to the rule of law, and overall contributions to the law. Based on my review of Elena Kagan's record and using these factors, I have determined General Kagan at this time does not meet the criteria for membership on our Nation's highest Court.

The President deserves deference in his nominations and, of course, Presidential elections have a direct impact on the makeup of our judiciary; that is to say, elections do have consequences.

But Senate confirmation should not be a simple mechanical affirmation of the President's selection, especially when the nominee will enjoy a lifetime appointment. A Senator is duty bound to conscientiously review the qualifications of the President's nominee and make an independent assessment of the nominee's qualifications.

General Kagan is well educated, intelligent, bright, and engaging, and advanced quite rapidly in her career of teaching and law school administration. But one must ask, is that enough? I believe it is not. I believe a judicial nominee must have substantial experience in the law, especially when the nominee is seeking a lifetime appointment to the highest Court in the land.

After reviewing her background, I believe General Kagan does not have that relevant experience. General Kagan is the first nominee to the Supreme Court with no prior judicial experience since 1971, almost 40 years ago.

While I do not believe a lack of judicial experience should bar one from serving on the Supreme Court, I note that reviewing prior judicial service is obviously the easiest way to assess a nominee's fitness for the Court. This lack of judicial experience does not prevent her nomination, but in my opinion it does shift the burden to the nominee to demonstrate her relevant experience.

For example, when the Senate considered Justice Sotomayor's nomination, there were over 1,000 prior opinions one could review to decide if she was ready for the job. With General Kagan, there are none. When I asked her to name opinions she worked on with Justice Marshall with which she disagreed, she stated she could not remember any individual opinion she worked on, much less whether she disagreed with Justice Marshall on any of them. She could not remember.

During our meeting, General Kagan noted her service as Solicitor General, another job I did not think she was qualified to hold, and said it was relevant because she was the Solicitor General. I agree it is relevant, but her time as Solicitor General has been too short. Since President Kennedy's Solicitor General, Archibald Cox, only one confirmed Solicitor General has served for a shorter period of time than General Kagan.

General Kagan argued her first case before the Supreme Court less than a year ago, and now we are going to confirm her as a member of that Court?

If we base her qualifications on her earlier legal experience, her experience is particularly limited. General Kagan worked for 2 years as a practicing attorney. Justices Rehnquist and Powell, the last two Supreme Court nominees without prior judicial experience, each spent many years in the active practice of law. Justice Rehnquist practiced in Arizona for over 16 years. Justice Powell was a partner in a major Virginia law firm for over 25 years and in practice for 38 years. General Kagan has 2 years of experience in private practice and 1 as Solicitor General.

I also think it is worth noting that the independent Congressional Research Service has found that, on average, the 39 Justices who lacked prior judicial experience had over 20 years of experience in the practice of law. General Kagan's experience pales in comparison.

During Justice Sotomayor's confirmation, I spoke about how President Obama's standard for selecting judicial nominees based on what was in their heart flew in the face of meritocracy--flew in the face of meritocracy. We, as a nation, aspire to hire people for jobs based on their skill, not on where they are from or who they know. Justice Sotomayor, in addition to her 17 years of total service on the trial and appellate benches, was in private practice for 8 years and was a district attorney for 4 years. Justice Sotomayor's experience as a lawyer and a judge, her judicial temperament, and the fact that her opinions were within the judicial mainstream gave me confidence that she had the relevant experience to sit on the Supreme Court.

Because there is such a limited record with General Kagan and because she has gone out of her way, quite frankly, not to answer questions, I have no idea what she will do on the bench and whether she will be able to suppress her own values to apply the law. The fact is, we really do not know much about her views.

Frankly, I have been surprised by some of my colleagues who attempt to compare her to the famous Justice Brandeis, another Justice with no prior judicial experience. Justice Brandeis practiced the law for almost 30 years before his nomination, much of his practice being pro bono in his later years. Furthermore, Justice Brandeis is widely regarded as one of the great legal minds of not just his time but of American history, having developed numerous areas of modern law from scratch. Yet, again, General Kagan pales in comparison.

In my meeting with General Kagan, I asked her about how little writing she had published, and she responded that she had more academic writing than other members of the Supreme Court. This is factually incorrect and misleading. First, this is incorrect. Justice Scalia is widely published with numerous articles and books. Justice Ginsburg went so far as to learn Swedish to coauthor a book on Swedish judicial procedure. And Justice Breyer was one of the most foremost authorities on administrative law, with many books and articles to his name before joining the Court. Second, it is misleading because each Justice publishes hundreds of pages a year in the form of opinions, greatly eclipsing General Kagan's academic production.

There are over 800 Federal judges, many of whom clearly have the experience, intelligence, and legal skill to serve on our Supreme Court. Additionally, if one believes, which I do not, that the Federal judiciary is somehow out of touch with our society, thousands, if not tens of thousands, of State court judges are out there with lengthy judicial records, many ready to serve on the Supreme Court. I think back to Justice Sandra Day O'Connor, who was on the supreme court of the State of Arizona for 8 years before she became a member of the Supreme Court.

As an aside, only a former law professor would think that the dean of a law school is somehow more in touch with everyday people than a judge. Every day, a judge is presented with the facts of everyday life and must apply them to the law. A dean at a law school, surrounded by professors earning hundreds of thousands of dollars a year and donors worth millions and students soon to enter into a professional career, never gets to see everyday life and is never faced with the factory worker, the farmer, or any other hardworking blue-collar Americans. How is a law school dean more in touch--more in touch--with everyday people?

Some of my colleagues would like to have had a less liberal person nominated by the President. My position is, the President will surely nominate a liberal. The most important question is, Is that liberal nominee qualified to be a member of the Supreme Court? I would argue that General Kagan has been nominated based on her friendships and personal attachments with President Obama and others at the White House, not based on objective qualities that would indicate she is qualified to be a member of the U.S. Supreme Court.

In closing, lack of judicial experience should not be an absolute bar to serving on the Supreme Court. However, Solicitor General Kagan not only lacks judicial experience but has limited experience as a practicing attorney with only the last year as Solicitor General and 2 years as a junior associate making up her entire practice.

Additionally, General Kagan has had an extremely limited written record--I mean limited written record--which should make all of us unsure as to what sort of Justice General Kagan will be.

For these reasons, I cannot in good conscience support the nomination of General Kagan to be a member of the U.S. Supreme Court.

Mr. President, I yield the floor and suggest the absence of a quorum.


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