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Public Statements

Executive Session

Floor Speech

Location: Washington, DC


Mr. CHAMBLISS. Mr. President, I rise today to discuss the pending nomination of Solicitor General Elena Kagan to be an Associate Justice on the U.S. Supreme Court.

The constitutional role of the Senate in the confirmation process of Federal judicial nominees is to provide for ``advice and consent,'' and it is up to each individual Senator to determine what he believes that phrase means. As I have had an opportunity to participate in this process on several occasions, I have discovered this is more of an art than a science.

I believe there should be some level of deference granted to the President's nominees. Elections do matter, and the President has the constitutional duty to put forward nominees whom he would like to serve on the Federal judiciary. However, when the President nominates an individual whose record, in the eyes of some Senators, proves to be disqualifying, then it is incumbent upon those Senators to oppose that nominee.

Several weeks ago, Ms. Kagan was granted an opportunity to sit before the Judiciary Committee and respond to her critics and clarify her seemingly controversial positions. Years before she herself would face the requisite questioning of a confirmation hearing, Ms. Kagan criticized the confirmation process as lacking ``seriousness and substance.'' This is a criticism based on the notion that recent court nominees believe the surest path to confirmation is by providing milquetoast, evasive answers to any question involving a controversial topic. In this instance, Ms. Kagan chose to emulate those whom she had once criticized.

Through many hours of questioning regarding her past statements, positions, and actions, her answers proved evasive and unhelpful, and with many portions of her record having not been adequately addressed, I am left with far too many doubts to simply presume the President's nominee should be confirmed.

There is little doubt Ms. Kagan is intelligent and accomplished. She has excelled in both professional and academic pursuits. However, it is important to consider that many of her accomplishments have taken place in overtly political arenas and have involved extremely controversial issues. Many of the controversial positions she advocated in the past will almost certainly be litigated before the Supreme Court. It is, therefore, incumbent upon her to show us she will leave her role as an activist and advocate behind when assuming a position on the bench. Again, this is an area where her responses before the Judiciary Committee were found lacking.

I believe any judge who sits on the Nation's highest Court must understand that the correct venue for making policy is here in the legislative branch. After a thorough review of her record, I am simply not convinced Ms. Kagan will exercise that requisite restraint. While there are numerous issues I find troublesome in her record, there are a few I would like to focus on today.

I am especially concerned about her discriminatory actions against military recruiters--in clear violation of Federal law and which was ruled against unanimously by the Supreme Court--while she was the dean of Harvard Law School. This was an act of defiance designed to protest the military's don't ask, don't tell policy. It has been argued that this was simply a misunderstanding or that Ms. Kagan made a good-faith attempt to apply the law as she saw fit. I believe her actions show a dangerous hostility toward the military and a troubling disregard for duly-enacted statutes with which she disagrees.

Another issue where I remain concerned is on the topic of abortion. While not having a litmus test here and while I never anticipated this President would nominate someone who shares my pro-life views, I could not imagine him nominating someone with the extreme views Ms. Kagan's record indicates. This is not just a pro-life versus pro-choice dilemma for me. There is substantial evidence from her time clerking for Justice Thurgood Marshall and from her time in the Clinton White House that demonstrates an alarming agenda she has on the issue of abortion.

While clerking for the Supreme Court, Ms. Kagan was tasked with reviewing a lower court ruling that had found that prison inmates have a constitutional right to taxpayer-funded abortions. While she concluded that the lower court ruling had gone ``too far,'' she also described the decision as ``well-intentioned.'' While there may be substantial political disagreement on the topic of abortion, it is hard for me to reason that any effort to further the idea of taxpayer-funded abortions, particularly for prisoners, is ``well-intentioned.''

Further, when she served as senior advisor to then-President Bill Clinton, she was a key player in the White House efforts to keep partial-birth abortion--an abhorrent practice that was finally banned in 2003--from being outlawed by the Congress. Documents seem to show extensive efforts to prevent any restrictions being placed upon the procedure. In fact, it appears Ms. Kagan actually went so far as to participate in the redrafting of a report from a medical group--the American College of Obstetricians and Gynecologists--on the practice that served to dilute the findings of the report and bolster her position of not restricting the procedure. These efforts appear to show a position on life-related issues that is well outside the view of mainstream Americans and mainstream legal thought.

Such views are not limited to the topic of abortion. She has demonstrated hostility toward the second amendment and gun rights during her past tenures in the judicial and executive branches.

Again while serving as a Supreme Court clerk, she was tasked with writing a memo on the case of a man who had petitioned the Court, claiming the District of Columbia's handgun ban was unconstitutional because it deprived him of his second amendment right. Striking an interestingly personal note, Ms. Kagan wrote: ``I am not sympathetic.'' It is common knowledge that a similar challenge to the District's handgun ban was successfully considered by the Supreme Court in 2008. What we do not know is why Ms. Kagan did not believe a similar challenge brought in 1987 was worthy of consideration before the Court.

Documents made available from the Clinton Library show she was a key player in that administration's gun control efforts. She was a key advocate for multiple gun control proposals and even authored multiple Executive orders that placed restrictions on gun owner rights.

Ms. Kagan is a unique nominee for the Supreme Court, as she has no judicial experience. The last time we confirmed a Justice to sit on the Court without earlier having served as a judge was nearly 40 years ago.

While a lack of judicial experience should not be disqualifying for a Supreme Court nominee, it does increase the necessity for that nominee to be forthcoming and open during their confirmation hearings. With no prior judicial record to view, Senators are left with little guidance as to how a nominee will act once they become a Supreme Court Justice. This is where we would hope the nominee could fill in the gaps. Instead, in Ms. Kagan's case, we are left to look to the past and at her records, and we are forced to make an overwhelmingly important decision with significant questions unanswered.

I remain concerned that Ms. Kagan will carry the political agenda that is evident in her past to the Supreme Court. Many of her views are clearly outside those of mainstream America, and therefore I will vote against her nomination to the Supreme Court.

I will close by saying that all of us, as Members of this body, receive input
from our constituents, and anytime there is a significant or controversial issue before the Senate, the volume of those statements from our constituents increases. In the case of Ms. Kagan, it has been extremely unusual and extremely interesting. I have had one phone call and four e-mails from Georgians in support of Ms. Kagan. I have had thousands of phone calls and e-mails in opposition to her nomination. That is very unusual, and it is an indication of why the polls nationwide are showing that her approval for a Supreme Court nominee is so low.

Mr. President, with that, I yield the floor.


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