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Public Statements

Executive Session

Floor Speech

Location: Washington, DC


Mr. INHOFE. Mr. President, I certainly could not improve upon the statements and arguments that have been made by my good friend from Arizona. I come from a little different perspective. There are six things I think any one of which would seriously make us consider voting against her.

I want to say this, first, though. Back when she was first nominated I was the first one to say I was opposed to her. The main reason was these things came up, most of them, when she was up to be confirmed for Solicitor General. At that time I objected to her being in that position.

I have a policy--I think it is good; people in Oklahoma know it--and that is, if you oppose someone's confirmation for a position and then they come back later for a higher position, it is automatic because the bar should be higher.

Anyway, today I want to reemphasize a couple of things that were mentioned by my friend from Arizona. One objection to the Kagan nomination is that she undeniably lacks the experience.

I think Senator Kyl said it very well. People say there have been others in history that didn't have any judicial experience, but in those cases, they averaged 21 years of practicing law. They had that experience. This would be the first time in history we have someone with less than 2 years' experience and no judicial experience. That would be reason enough, but that is not my major objection.

My major objection is her disdain for the U.S. military. While dean at Harvard, Kagan banned the military during a time of war from recruiting on campus due to her objection over the don't ask, don't tell policy. That was the policy put together during the Clinton administration while she was in the administration. She did not object to it at that time, but she objects to it now.

There has been much made by her supporters about her role in this incident, but the truth is that in November of 2004, after the Third Circuit Court of Appeals struck down the Solomon amendment--I was there when the Solomon amendment was passed in the House--Kagan affirmatively disallowed the military from recruiting at the school's office of career services. Subsequently, she joined 40 other schools in filing an amicus brief with the Supreme Court in the case opposing the Solomon amendment which was then overwhelmingly opposed and reversed by the Supreme Court unanimously. She was taking advantage of that opportunity when she didn't allow recruiters at the university. We have seen this happen around the country, not only Harvard but in California. This is something that is definitely in opposition to the law that is still in place, referred to as the Solomon amendment.

Equally alarming to these actions is her misrepresentation of the facts before the Judiciary Committee. I wasn't aware of this, certainly not back when she was up for Solicitor General. She testified that military recruiters had ``full and good access'' to Harvard's campus. Military recruiters clearly did not have full and good access, as they had to work through the school's veterans group as opposed to being allowed to go through the office of career services, a part of the university.

Internal Pentagon documents reveal that under her deanship ``The Army was stonewalled at Harvard.'' Furthermore, Kagan told the committee that in banning recruiters she ``always thought we were acting in compliance'' with Federal law. Yet in her own e-mail to Harvard students and faculty, she wrote that she had ``hope'' that the government ``would choose not to enforce'' the law.

I am alarmed that Kagan would not only ban military recruiters on campus in a time of war but that she would do it to advance her own liberal and social agenda, then mislead the committee with her statements.

During her tenure as dean of Harvard, Kagan sent a letter with three other law school deans to the Senate in 2005 opposing legislation that sought to prevent terrorists convicted in military tribunals from appealing their convictions in Federal courts. She compared this legislation to the ``fundamentally flawless'' actions of a ``dictatorship'' that has ``passed laws stripping courts of power to review executive detention or punishment of prisoners.'' That is not what I said. That is what Ms. Kagan said.

We have the best judicial system in the world. Equating our laws relating to the war on terror to that of a dictatorship would be laughable, were it not so pervasive in liberal academia.

Kagan has a history of misrepresenting facts to push her liberal agenda, including her efforts while working in the Clinton administration to change statements of two medical associations to withhold the truth about partial-birth abortion. This is interesting. Both groups had a firm position, and she influenced a change in that position. During the debate over the Partial Birth Abortion Ban Act, Kagan wrote a memo to President Clinton in December 1996 objecting to the release of the American College of Obstetricians and Gynecologists--ACOG--proposed statement that partial-birth abortion is never medically necessary. This is what their position was. They came out and said that it was never necessary.

``The release of the statement would, of course, be a disaster.'' Those are her words, talking at that time to the Clinton administration. We have evidence from Kagan's handwritten notes that she advocated a change in the statement to reflect that partial-birth abortion may be medically necessary. One month later, ACOG released a statement with language nearly identical to Kagan's language that such abortions may be medically necessary to save the life and preserve the health of the mother. In addition to seeking to change ACOG's position, Kagan also sought to alter the American Medical Association position on partial-birth abortion. She once again tried to alter the facts and encourage AMA to change its medical policy on partial-birth abortion.

What is perhaps more concerning about Kagan's efforts to manipulate the medical policy of ACOG and AMA is that these medical policy statements were then used, sometimes successfully, in Federal courts to invalidate State laws and the Partial Birth Abortion Ban Act. She manipulated medical facts to advance a barbaric practice and push a political agenda.

We are talking about two highly respected medical associations that said partial-birth abortion was not something that was necessary, changing their positions. Then that was later used in court cases. Moreover, Kagan criticized the Supreme Court decision of Rust v. Sullivan which upheld the Department of Health and Human Services regulations prohibiting title X family planning funds from being directed toward programs where abortion is a method of family planning.

Additionally, while clerking for Justice Marshall, she authored a memo arguing that all religious organizations should be off limits from receiving Federal funds for programs authorized by the Adolescent Family Life Act such as pregnancy testing, prenatal/postnatal care, adoption counseling, and childcare, because these programs are so close to the central concerns of religion.

I also seriously question Kagan's willingness to honor and defend the second amendment, getting into an area that is probably more sensitive to a lot of my friends, including my son and members of the family, who are active and strong believers in second amendment rights. While clerking for Justice Marshall, Kagan wrote a memo about a case challenging Washington, DC's strict gun control laws. In only four sentences she was dismissive of the case, writing that she was ``not sympathetic'' to an individual-rights view of the second amendment. As everyone knows, the Supreme Court has since upheld the individual right to keep and bear arms. Kagan also used her position with the Clinton administration to advocate various anti-second amendment initiatives. Documents from the Clinton library illustrate that she supported background checks for secondary market gun purchases as well as municipal liability suits against gun manufacturers.

She helped develop an executive order banning the importation of certain types of semiautomatic weapons that were not covered by the 1994 assaults weapons ban. She also sought to permit law enforcement to retain Brady background checks information on lawful gun sales.

Finally, in an internal document regarding the Volunteer Protection Act, she described the NRA as ``a bad guy organization.''

She might get by with that in this Chamber, but she wouldn't get by with it in Oklahoma. We read the Constitution. We know what it says. She has no respect for the second amendment.

I am also gravely concerned, based on Kagan's writings and statements, that she would be a judicial activist who would seek to legislate from the bench. In her 1998 masters thesis at Oxford she wrote:

As participants in American life, judges will have opinions, prejudices, and values. Perhaps more important, judges will have goals. And because this is so, judges will often try to mold and steer the law in order to promote certain ethical values and achieve social ends. Such activity is not necessarily wrong or invalid.

She is stating, not just from today but going all the way back to her Oxford days, that judicial activism is appropriate. Rather than affirm the role of judges as the faithful interpreters of the law, Kagan voiced her support for judges who seek to serve as legislators, who develop their own empathy standards and apply the law in a matter they personally see fit. Her self-acknowledged judicial hero, Aharon Barak, perfectly fits this mold. In her testimony before the committee, she even affirmed that she would consider foreign law when she decides cases. She said:

I guess I'm in favor of good ideas from wherever they come.

We are talking about referring to other countries that have a different judicial system and saying maybe they are right and maybe we are wrong. I simply cannot support a nominee who looks to other judicial systems or judicial philosophies or evolving standards of decency rather than the text of the Constitution to interpret law.

I have thoroughly reviewed the record of Elena Kagan and have come to the firm conclusion that she lacks the qualification and experience to be a Supreme Court Justice.

I have named six things. Any one of these six should be disqualifying. One is, she wants to consider foreign judiciaries. Two, she has no judicial or trial experience. Third, she is a judicial activist. Four, she is extreme in her philosophy on abortion and anti-second amendment views, and she is antimilitary.

I think of all the things I have mentioned, probably the part that concerns me most is her position that if we are trying someone in a military trial, maybe a terrorist or an activist, that they would be given the right to appeal to our court system and inherit all the benefits any citizen of the United States has.

I can only say what I said several months ago when she was first nominated. In my opinion, as 1 of 100 Senators, if she is not qualified to be Solicitor General, she is certainly not qualified for the higher job of Justice of the U.S. Supreme Court.


I also wish to discuss one of the problems that is going to come up tomorrow, and that is with the Democratic and Republican energy bills. I am very concerned about a process that has been successful in extracting oil and primarily gas out of tight formations, known as hydraulic fracturing. Hydraulic fracturing started in Oklahoma in 1949. We have used hydraulic fracturing to get at these tight formations for 60 years, and there has never been one case of any kind of contamination of water.

There are people who want to do away with our ability to run this machine called America. They don't want oil, gas, coal, or nuclear. That kind of gives an idea of what might be behind this.

Some say: No, we are not against hydraulic fracturing. This bill merely says we want the Federal Government to know what chemicals are used.

This is already being done on a State-by-State basis. Things aren't the same in Oklahoma as they are in New York. In Oklahoma, we have very strict rules. They know exactly what chemicals are used. By the way, 99 percent of what is used on these formations is water and sand.

I am looking forward to talking in more detail with my good friend Senator Casey. He is kind of the author of this portion of the bill. Yet his State of Pennsylvania has huge opportunities for natural gas. I think we need to talk about that. We have enough natural gas that if we would take away all the inhibitions we have and keep hydraulic fracturing as a process to be used, we could run the country for 100 years. I think it is our job to make sure we protect that.

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