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Public Statements

Executive Session

Floor Speech

Location: Washington, DC


Mr. KAUFMAN. Mr. President, I associate myself with the remarks of the Senator from Virginia. He is right on point. This is not about a trial. This is about people getting what they justly deserve. It is time we do it. I thank him for coming to the floor and making that argument.

I wish to speak tonight in support of the nomination of Solicitor General Elena Kagan to be an Associate Justice on the Supreme Court.

On July 13, I first came to the floor and gave my reasons for supporting this outstanding nominee. She has a superior intellect, broad experience, superb judgment, and unquestioned integrity. Throughout her career, she has consistently demonstrated a first-rate intellect and an intensely pragmatic approach to identifying and solving problems--two traits that are indispensable in any great judge, and she will be a great judge. I support her nomination with enthusiasm and without reservation.

I am here today not to repeat the basis for my support but to note briefly two aspects of this debate that I find particularly troubling.

First, I have heard some of my colleagues attack this nominee based on arguments she made and positions she took in her role as Solicitor General in a particular case when she made this argument on behalf of her client, the United States of America. That causes me great concern because I think these kinds of attacks--think about it for a minute now. She is not in a public forum. She is not giving a speech. She is not writing an article. What she is basically doing in court is representing the United States of America, making the argument that she thinks is the best argument to carry for the United States of America. And people pull that out on the Senate floor and read it and are critical of it.

I can understand why one disagrees with the Solicitor General on an argument they make. I can understand why one disagrees with the Supreme Court. But to pull that out and use that against a nominee is very troubling because it gets to the basic question of what is the job of a litigator, of a lawyer, of a solicitor in making the argument for their client.

Solicitors General are responsible for representing the United States before the Supreme Court. They should be free to make all appropriate arguments on their client's behalf without fear that those arguments might someday be held against them if they happen to be considered for another office.

The Solicitor General's role in selecting cases in which she must represent the government is very limited, particularly in the many cases in which the government is the respondent. We want lawyers representing the United States in any court to do so zealously, well within the bounds of the law. We should not give them reason to hesitate about doing so by later treating those arguments as reflecting their own personal, private beliefs, which they do not do.

I am reminded of the attacks we too often see on lawyers who represent unpopular clients, with the suggestion being that the lawyer's legal arguments must also reflect that lawyer's personal views. Think about that. A lawyer gets on a case, a lawyer is doing pro bono work, a lawyer has been assigned by a judge and makes an argument in court for their client, trying to get their client cleared, and we bring it back as if the lawyer is making that argument about themselves. I have heard it too often on this floor and in committee.

Let's not forget that the American tradition of representing unpopular clients is older than our Nation, dating at least as far back as John Adams' representation of British soldiers charged in the Boston Massacre. John Adams defended the British soldiers involved in the Boston Massacre. Would it be fair to bring that up on the floor of this body to say that he was in favor of the British soldiers and use that against him if, in fact, he had been nominated to a position?

The vigorous defense of the United States requires that we not limit its advocates to making only those legal arguments with which they personally agree. I am surprised I even have to make that statement on the floor.

More broadly, our adversarial system depends on advocates making all proper arguments that are in the interest of their clients. I feel as though I am in a lawyer 101 class. Why do I have to be saying this? It is simply wrong to assume a lawyer's arguments reflect his or her personal convictions. Again, lawyer 101. It is, therefore, also wrong to oppose a nominee based upon proper arguments that a nominee has made as a lawyer, regardless of whether an individual Senator regards those arguments to be legally correct.

My second concern relates to the repeated and unjustified comments by many of my colleagues regarding the word ``empathy,'' which they seem to regard as a trait deserving of recrimination. Empathy, empathy, empathy.

I commend to my colleagues a superb commentary on this point by Joel Goldstein, distributed by the History News Network. I ask unanimous consent to have this commentary printed in the Record.

There being no objection, the material was ordered to be printed in the RECORD


Mr. KAUFMAN. Mr. President, as Professor Goldstein points out, President Obama's interest in empathy in Supreme Court nominees follows in the path of President Theodore Roosevelt who chose to nominate Oliver Wendell Holmes in 1902 based in part on Holmes' capacity for empathy.

Roosevelt said it was ``eminently desirable'' that the Supreme Court make ``all proper effort to secure the most favorable personal consideration for the man who most needs that consideration.''

I can understand concern about sympathy. I do not have it, but I understand sympathy. But empathy? President Theodore Roosevelt was not suggesting that Justices should somehow favor or advantage the downtrodden; that is not what he was saying and that is not what President Obama was saying when he was a Senator, only that they make every effort to understand the position of the litigants from walks of life different from their own.

Likewise, President Obama's promotion of empathy is not, as his critics suggest, the advocacy of bias. ``Empathy,'' as a quick look at the dictionary will confirm, is not the same as ``sympathy.'' ``Empathy'' means understanding the experiences of another, not identification with or bias toward another. Let me repeat that. ``Empathy'' means understanding the experiences of another, not identification with or bias toward another. Words have meanings, and we should not make arguments that depend on misconstruing those meanings.

Let me quote several insightful paragraphs from Professor Goldstein's article about why empathy is important in judging. I quote Professor Goldstein:

In context, Roosevelt and Obama were making the same point, that effective judging requires sensitivity to a wide range of experiences. It is relatively easy for judges, like other human beings, to relate to the experiences and perspectives they have shared.

All of us can do that. We can relate to the people we know around us. We can relate to our experience. We can relate to people with whom we went to school. We can relate to all those things.

What's difficult, for judges and the rest of us, is to comprehend those to which we have not been exposed.

That reality sometimes inclines judges to favor those whose positions and circumstances are familiar.

We all know that. There but for the grace of God go I, reasons why juries will let someone go free.

The bias may be unconscious but that does not make it any less real or decisive or unfair.

To continue the quote:

The Republican Roosevelt and the Democratic Obama recognized that empathy was an important corrective to these hidden preferences. Far from conferring favoritism or setting law aside, as Obama's critics contend, T.R. and Obama understood that empathy is often a prerequisite for impartiality.

The quality of empathy, which Obama's critics parody, was critical in decisions which all now celebrate. Brown v. Board of Education declared racially segregated education a violation of the equal protection clause because it created in African-American children a ``feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to ever be undone.''

The PRESIDING OFFICER. The hour controlled by the majority has expired.

Mr. KAUFMAN. Mr. President, I ask unanimous consent for 1 more minute.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. KAUFMAN. I thank the Chair.

By viewing the world from the perspective of black children, the Court identified the wrong in segregation even while some strict constructionists saw the decision as lawless.

I happen to think Elena Kagan is an outstanding nominee. I respect the fact that others disagree. I truly do. I hope that as this debate continues, we take care to make arguments that are fair expressions of our very real disagreements and avoid arguments that chill legitimate advocacy or deliberately misconstrue the words of others.

Mr. President, I yield the floor.


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