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Public Statements

Executive Session

Floor Speech

Location: Washington, DC


Mr. LeMIEUX. Mr. President, I rise to speak on the President's nomination
of Elena Kagan to serve as an Associate Justice on the U.S. Supreme Court.

First, I congratulate my colleague from Iowa for his tremendous remarks this evening, as he went through the reasons he will not be supporting Elena Kagan. I congratulate him on such a reasoned and persuasive oration this evening.

Ms. Kagan has been nominated to fill the seat of Justice Stevens. I had the opportunity, in 2004, to appear before the Court in the position as deputy attorney general of Florida. During that time, because Chief Justice Rehnquist was ill, Justice Stevens presided.

I think before I go into an evaluation of Solicitor General Kagan, it is important to note what a historic figure Justice Stevens is to the American bench and the bar.

Even before he began his 35 years of service on the Supreme Court, he built a stellar reputation as a member of the bar as a lawyer and a careful jurist. He graduated from Northwestern School of Law. He served as a clerk to Supreme Court Justice Wiley Rutledge. Then he spent nearly 20 years, from 1949 to 1969, as a practitioner of law and one of the country's foremost experts on antitrust law. He taught courses at the University of Chicago, he served on a Department of Justice commission, and he authored various papers on antitrust issues.

It was in 1970 that President Nixon appointed Justice Stevens to the U.S. Court of Appeals for the Seventh Circuit. After 5 years of service there, he was elevated to the Supreme Court.

His service to this country should be remembered, and he gets our thanks. On behalf of a grateful nation, I send my gratitude to him for his unique and important service to this country.

In evaluating a nominee to the U.S. Supreme Court, we in the Senate exercise a solemn obligation. It is a rare time in our constitutional democracy when the three branches come together in one proceeding. One of those is the unfortunate proceeding of impeachment. Thankfully, that is not why we are here. But the other is this proceeding--a proceeding when the President submits for consideration a judicial nominee who is then evaluated by this body under the advice and consent clause of article II, section 2, clause 2 of the U.S. Constitution.

That clause reads, in part:

[The President] shall have Power, by and with Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States. .....

While we do have that advice-and-consent role on a normal occasion for those other officers, for judges of the lower courts, for ministers and the like, it is a rare occurrence when this body has the honor and opportunity to evaluate a Supreme Court nominee. Because it is a rare occurrence and because this is a lifetime appointment to the head of one of the branches of our coequal government, we have a solemn responsibility to do our job and understand what our job is.

In preparing for this responsibility of providing advice and consent and in being a lawyer who wanted to do a good job and be lawyerly about this work, I took the opportunity to try to study up on what our opportunity and responsibility is in this confirmation of a Supreme Court Justice.

What do these terms ``advice and consent'' mean and what is our responsibility and how do we undergo that responsibility to fulfill our constitutional obligation? Certainly, in order to fulfill it, we must understand it.

What does advice and consent mean? Advice certainly means to provide information, counseling, and to give some feedback to the President of the United States as to a nominee. It seems to be more of the role of a counselor than anything else. But of the two words, it is not the most weighty.

The most weighty of the two is consent. In fact, the advice-and-consent function is not found within the enumerated legislative powers. Article I of the Constitution holds those responsibilities. Advice and consent is found in article II, which enumerates the powers of the executive branch, of the President. Advice and consent is shown as a limitation on the President's power. The President cannot just put whomever he or she wishes on a court. He can only do so with the advice and consent of this body. In fact, our Founders did not place this responsibility in both the House and the Senate. They solely put that responsibility among the Members of this body. ``Consent'' being the operative and, in my mind, meaningful term because without our consent, the nominee is not confirmed.

Our responsibility is not trivial, and we are certainly not here to be a mere rubberstamp on the President's nomination. It is our obligation to thoroughly evaluate and provide that consent because, but for our consent, the nominee will not be seated.

How do we execute that responsibility? What does it mean to provide consent and how should we do it?

Certainly, we have to look at the nominee and the applicant. We have to see that the person will be a person of integrity, that they are thoughtful, that they have experience, and that they will uphold the obligations of a Supreme Court Justice.

Last May, when I started my work of trying to evaluate how I would fulfill my constitutional obligation and started to do some reading of prior confirmation proceedings, the writings of Senators who have come before me, I came upon what I believe is a four-part criteria to evaluate a nominee to the Nation's highest Court.

It should be stressed how important a position this is. There are only nine Justices who sit atop the judicial branch, and they are appointed for life. There is no other portion of government where this is true, to be head of a coequal branch for life--Justice Stevens serving 35 years on the U.S. Supreme Court.

What criteria should we use? I propose the following: One, a nominee should present a robust body of work. Why? Because there needs to be something for us to evaluate. We need to have the ability, in providing our consent function, to look at a body of work so we can properly execute our responsibility.

This does not mean, nor do I believe, that it is required for a nominee to the U.S. Supreme Court that they have been a judge. In fact, our Constitution provides no requirements for a judge to serve on the U.S. Supreme Court. This is unlike what we see in the Congress. There are specific requirements of how old you have to be to be in the House, to be in the Senate, how many years you must be a resident of this country. The same requirements apply to the President. There are no requirements for a judge as it is stated in the Constitution, for a Justice of the Supreme Court.

In evaluating that there are no requirements, we certainly need to know what the Justice stands for and how the Justice will fulfill his or her obligations on the Court. Without a body of work, that is very difficult to evaluate. While there is no requirement that one be even, in fact, a lawyer, although every person who has been confirmed has been a lawyer, and there is no requirement that you be a judge, if you are not a judge, you do not have a robust body of work for us to evaluate. That makes it more difficult on our part to make a decision of whether we should give our consent and, I suggest, it provides an additional burden to the nominee to be forthcoming when answering questions. Since we do not have a body of work to evaluate, since we cannot look at prior decisions that a judge has handed down, to know how a judge ruled in the past and, therefore, glean how the judge will rule in the future, that nominee must be forthcoming so we can hear how he or she will do his or her job as a Justice.

Second, the nominee must demonstrate an unfailing fidelity to the text of the Constitution and proper restraint against the temptation to expand judicial power. Why do we find this important? I will talk about this more in a minute. It is because we have a separation of powers and checks and balances that were imbued in our Constitution by our Founders. They intended for our government to be counterbalanced by each branch--the legislative, the judicial, and the executive.

It is the beauty of the Constitution that no branch will exert too much authority because it will be checked by the other, each branch having checks on the other. Furthermore, sometimes forgotten, is that the Federal Government is part of a federalist society. We are a Republic, and the Federal Government is only one piece of the governmental structure. The rest are the governments of the States and the powers and rights which are left to the people under our Constitution. Our Founders sought checks and balances between the Federal Government and the State governments and the people as well.

A nominee must understand that the judiciary cannot expand its role beyond the confines our Founders intended. In fact, we know our Founders intended for the judiciary not to serve as a legislative branch because in article II, the legislative power is vested solely in the Congress.

For a judge or Justice to take on a legislative role, to not have a firm adherence to the law as written, violates the separation of powers, violates the rights and responsibilities of the Congress.

Third, the nominee must make determinations about the meaning of Federal law and the Constitution and apply the law as written, again, because of that separation of powers.

Fourth, the nominee must understand the Court's role in stopping unconstitutional intrusions by the elected branches. Our Founders knew each branch of government would seek to expand the scope of its power. That is the beauty of the checks and balances system--to keep each body in check. They did not want a strong executive. They worried about the tyranny of the executive. But they also worried about the tyranny of the legislative. Nor did they hope the judiciary would become too strong.

Alexander Hamilton wrote in Federalist No. 78 that ``it is the courts that will serve as the bulwarks of limiting Constitution against legislative encroachment.''

Our Founders designed this intricate system of checks and balances to keep all the governmental bodies and institutions in check, to not expand to the detriment of another body, to not expand to the detriments of our rights and the rights of the States.

In evaluating Solicitor General Kagan--and I note also in comparing her to Justice Stevens--I find she does not have the experience that gives us the opportunity to evaluate her work, to determine what kind of judge or Justice she would be.

In preparing for this decision, I went back and I read a book that was written by one of our predecessors, Senator Paul Simon. It was a book he published in 1992. The book is called ``Advice and Consent.'' The book concerns the confirmation hearings of Justice Bork and Justice Thomas.

Interestingly, in this book--and it is a very fine book and I commend anyone who is interested in this topic to read it--there is a foreward in the book by Laurence Tribe, the famous constitutional scholar, at the time the Tyler Scholar of Constitutional Law at Harvard University, with whom I believe Solicitor General Kagan served when she was the dean of Harvard Law School.

In this foreward, I think that Professor Tribe provides a very cogent and focused analysis of the problem we experience in the modern confirmation setting where nominees fail to provide sufficient answers to questions.

Why this is so troubling with Solicitor General Kagan is because we do not have the body of work to evaluate. It has been the course, in the past 20 years, that it seems all the nominees to the Supreme Court give these sort of vapid answers. That is not my phrase. That is, in fact, her phrase. We will talk about that in a moment--vapid answers that come from questions from the Senators on the Judiciary Committee, failing to articulate what your position is on a particular point of law, all the more concerned when we have no record to evaluate.

Here is what Professor Tribe said:

The Court and the Nation cannot afford any more ``stealth'' nominees who steadfastly decline to answer substantive questions the Senate might pose on the oft-invoked ground that the matter might come before the Court during their possible tenure. This easy refrain does not provide a valid excuse for stonewalling, no matter how frequently it is repeated .....

On the contrary, the adversary system works best when all concerned, and not just those who nominated the judge, know what there is to be known about the judge's starting predispositions on a pending issue. And let's stop pretending that such predispositions do not exist. It hardly fosters fairness to claim that a mind is completely neutral when in fact a lifetime of experiences has unavoidably inclined it one way or another and to other, and to equate an open mind with a blank one insults the intelligence of all concerned.

He goes on to say:

A nominee whose record is too pale to read with the naked eye or whose views are shrouded in fog too dense for anything but the klieg lights of national television to pierce is probably ill-suited for a lifetime seat on the Supreme Court in any event.

Let me repeat:

A nominee whose record is too pale to read with the naked eye or whose views are shrouded in fog too dense ..... is probably ill-suited for a lifetime seat on the Supreme Court.

Mr. President, unfortunately, that describes Solicitor General Kagan. She is an extremely bright and articulate woman. She has a tremendous academic background. I commend her for her public service--of serving in a Presidential administration. I commend her for serving as dean of a law school. That too is public service. But our job is to evaluate these nominees, and we cannot evaluate them if they have no record of how they would rule or how they have ruled, and they provide no sufficient information when they come before the Judiciary Committee of this body. Without that information, how can we faithfully provide our consent?

There is a notion in the law of consent needing to be informed. In fact, it can't really be consent in the law if it is not informed. Yet Solicitor General Kagan, without a judicial record and a failure to directly and clearly answer questions, as Professor Tribe writes, fails to give us the information to allow us to give consent in an informed way.

We need to look no further than her own words when she wrote, in a spring 1995 Law Review article. It was a comment on a book that was talking about the confirmation mess, and then-Professor Kagan, also bemoaning the state of confirmation hearings, said:

When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.

She described the process before the Judiciary Committee as becoming vapid, and, unfortunately, even though she should know more than anyone else--because those were her words, the charade that she condemned in her article in the 1990s--she engaged in the same charade when she appeared before the Judiciary Committee.

``A nominee whose record is too pale to read with the naked eye or whose views are too shrouded in fog ..... is probably ill-suited for a lifetime appointment,'' said Professor Tribe.

Ms. Kagan also has very little practical experience. Unlike Justice Stevens, who practiced law for 20 years, Ms. Kagan practiced law for 2. Never having served before as a judge, we don't know her record. She said that the confirmation proceedings in the past had an ``air of vacuity and farce,'' a ``vapid and hollow charade.'' Instead of following her own admonishment, she participated in that charade. She engaged in the same vapid exercise that she condemned.

The burden was on Ms. Kagan to demonstrate how she would rule as a judge. With no record for us to evaluate, she could not engage in the same charade that she had previously condemned and leave us with nothing to know as to how she would act in a lifetime appointment--an appointment, if Justice Stevens' record is any sort of indication of how long a ``Justice Kagan'' might serve, for 35 years.

I have an obligation, Mr. President, under article 2, section 2 to provide advice and consent, and I cannot do so where the nominee cannot or does not provide a record that my colleagues and I can evaluate. We are left without a solid basis upon which to judge how she would judge.

During the Judiciary Committee proceedings, she said she would give binding precedent all the respect of binding precedent. That is meaningless. It gives us no indication of how she might make her decisions, how she might rule.

So I am left with these serious concerns. I am left with the serious concerns about her commitment to uphold the constitutional principle of a limited government, the fundamental protections of the second amendment, and placing law ahead of her personal and political views.

I spoke before about one of these criteria being the fidelity to the Constitution and the principle of a limited Federal Government. ``Thomas Jefferson warned us that our written constitution can help secure liberty only if it is not made a blank paper by construction.''

Ms. Kagan testified that her whole life provided indications of what kind of judge or Justice she would be. And in that statement I agree.

As mentioned earlier, before law school, when she was writing a thesis at Oxford, she stated that ``new times and circumstances demand a different interpretation of the Constitution,'' and that judges may ``mold and steer the law in order to promote certain ethical values and achieve certain social ends.'' That is not what the Founders intended for a Justice of the Supreme Court.

In that same thesis, she wrote:

The judge's own experience and values become the most important element in the decision. If that is too results oriented, so be it.

Mr. President, that is a violation of the constitutional requirement that all power legislative be vested in this Congress.

I was concerned about the colloquy that she had with Senator Coburn. In fact, it was something I discussed with her in person prior to her testimony before the Judiciary Committee. This colloquy was about the commerce clause and whether or not it was limited. Remember that our Founders intended for the Federal Government to be limited in its powers. That is why there are enumerated powers in article 1. They are not plenary; they are limited by their number.

Senator Coburn asked her about sponsoring a bill, about requiring Americans to eat their fruits and vegetables, and it got a response from Solicitor General Kagan that it ``sounds like a dumb law.'' But Senator Coburn asked whether or not it would be constitutional and she failed to provide an answer.

Senator Coburn then put the meat on the bones and asked:

What if I said that eating three fruits and three vegetables would cut health care costs by 20 percent? Now we're into commerce. And since the government says that 65 percent of all the health care costs [are because of health care], why isn't that constitutional?

No real meaningful answer to give clarity of how Solicitor General Kagan as Justice Kagan would rule.

Mr. President, the Federal Government has expanded its powers beyond what our Framers intended--far beyond what our Framers intended. James Madison, in Federalist 45, said:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.

But that is not how our constitution is modernly interpreted. We are away from what our Founders intended. We are away from the clear meaning of the words of the Constitution. And Solicitor General Kagan doesn't tell us that the commerce clause has a limit, in her view. And it is through the commerce clause that this Congress and Congresses in the past have sought to enter and to invade every portion of life in this country--things in which our Founders never intended the Federal Government to be involved.

It appears Ms. Kagan has this same view of an expansive Federal Government--a Federal Government that makes States its dependents and apparatuses thereto, a Federal Government that has no limits, a Federal Government that can invade every portion of our lives, a Federal Government that is too vast, too expensive and beyond what our Founders intended.

I am also concerned about Solicitor General Kagan's views on the right to bear arms enumerated in the second amendment. I think she has too little regard for some of our Constitution's most fundamental protections. As a law clerk, she was dismissive of the second amendment, saying she was not sympathetic to the amendment.

During the Clinton administration, she developed numerous anti-second amendment initiatives. In her confirmation process for Solicitor General, she declined to comment on second amendment rights.

There was a discussion earlier of my friend and colleague from Iowa talking about natural rights. I think it is important for us to remember the setting upon which our Framers brought this constitution to bear. There were the Articles of Confederation--a loose arrangement between the States where there was no central government. The Founders took it upon themselves to seek to enact a stronger Federal system but a system that, as the 9th amendment, the 10th amendment and other provisions of the Constitution show, leaves rights to the States and to people; that enumerates specific powers of the Federal Government.

Remember, initially, there were not even the first 10 amendments. Remember, there was a confirmation battle as to whether the States individually would ratify the Constitution. There were anti-Federalists who thought the constitution had gone too far and given too much authority to the Federal Government, and our Founders Hamilton, Madison and Jay, in writing the Federalist Papers, had to make the case of some form of central government. But they gave the assurances that most of the obligations to govern would be left to the people and the States. Ms. Kagan doesn't have that view, it appears.

Finally, I am concerned about the way that then-Dean Kagan treated the military as the dean of Harvard Law School. I think it is outrageous that the U.S. military was not allowed to recruit on campus while she was the dean of the law school. And this idea that the military could go through another part of the school--the Veterans Association but not the Career Services Office--is outrageous. The Veterans Association had no funding, no office. It was not set up to allow law students to interview with the military.

Some have called this the same as ``separate but equal.'' It was not even equal. It is outrageous. It is outrageous beyond the fact that Harvard received Federal dollars. It is outrageous that a premier institution such as Harvard University, one of our first institutions of higher learning, known throughout the world as being an exceptional school, would not allow the military the benefit of its students to serve by being interviewed on campus, in a regular on-campus process in which every law firm or other agency of government is allowed to participate. And that is a decision that she presided over. That is an error of judgment.

But I also believe that it was an error of law. In 1996, Congress passed the Solomon Amendment allowing the Secretary of Defense to deny Federal grants to institutions of higher education if they prohibited ROTC or military recruitment on campus. Under the Harvard Law School antidiscrimination policy, the military was banned from utilizing its services, and it was concluded that, therefore, those Federal funds would be suspended.

Ms. Kagan refused to abide by that Solomon Amendment when she was the dean. In 2002, Harvard was informed by the Department of Defense its practice of letting military recruiters contact students through the Harvard Law School Veterans Association, but not the Office of Career Services, violated the Federal law. In response, Dean Kagan filed a brief challenging the constitutionality of the Solomon Amendment, which is her right--not a good decision but her right.

The Court of Appeals for the Third Circuit enjoined the law. And Ms. Kagan reinstated Harvard's, in my view, discriminatory policy.

Now, you might say: Well, the court ruled; therefore, it was appropriate for her, if she so chose, to go back to the previous policy because that had been enjoined. However, Massachusetts is not in the Third Circuit, it is in the First.

An appellate decision in the Third Circuit is not binding on the First Circuit. If Dean Kagan wanted to go to court again and seek to have it applied, that would have been one thing. What she did instead is unilaterally follow a decision that had no effect upon her and, in my view, violates the law.

Again, I think Solicitor General Kagan is an extremely intelligent person, an articulate person. I think that she has a commendable career of public service. But she has failed to meet the burden that is required of someone with no judicial record. She has failed to inform us of how she would judge as a member of the U.S. Supreme Court. With no record to read, there is heightened scrutiny on the nominee, and we did not have the opportunity to have full and forthcoming answers from Ms. Kagan. Instead, what we had was the same vapid and vacuous answers that she condemned in her law review article in the mid-1990s, the same type of charade Lawrence Tribe said makes somebody ill-suited for a lifetime appointment, with such a thin record.

If perhaps she would have been more forthcoming, I would have been able to come to a different conclusion. But when you take the lack of her record, her inability to provide clear responses to questions to give us indication of how she would rule, and the concerns about the second amendment, about how she treated the military at Harvard, and her views about the activism of the Court--in light of all those reasons, I will be voting no on Ms. Kagan's confirmation.

I yield the floor.

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