Nominaton of Elena Kagan

Floor Speech

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Mr. ROBERTS. Madam President, after careful consideration and assessment of the nominee's record and expressed views, I rise today to express my opposition to Solicitor General Elena Kagan's nomination to the U.S. Supreme Court.

In the nomination process, a telling and inciteful statement by another Senator is most applicable and pertinent. During the Senate's debate on the nomination of Chief Justice John Roberts, then Senator Barack Obama stated:

..... that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before the court, so that both a Scalia or Ginsburg will arrive at the same place most of the time on those 95 percent of the cases--what matters on the Supreme Court is those 5 percent of cases that are truly difficult.

In those cases, adherence to precedent and rules will only get you through the 25th mile of the marathon.

That last mile can only be determined on the basis of 1) one's deepest values, 2) one's core concerns, 3) one's broader perspectives on how the world works, and 4) the depth and breadth of one's empathy.

I respectfully disagree with this rationale and find it troubling. Our judges must decide all cases in adherence to legal precedent and rules of statutory or constitutional construction.

The role of a judge is not to rule based on his or her own personal judgments or comply with one's empathy, how they think the world really works, concerns and values--deep or shallow--all subject to personal views, ideology and the winds of time and political change. No, the role of a judge should adhere to the laws as they are written.

An appointment to serve on the Supreme Court of the United States is a lifetime term. It was crafted by our Founders to protect and insulate the highest Court of our land from personal concern, empathy, individual values or how one thinks the world really works at some point of time, not to mention the threat of any influence of politics.

Nominations to the highest bench should therefore not be considered lightly. It is one of the most important votes a Senator has the privilege to cast.

And I would submit compared to the standard of legal precedent, statutory rules, constitutional construction, again personal values, concerns, how the world allegedly works and one's personal criteria of empathy represents a lesser standard--sort of a standard lite.

The qualifications of the nominee must be carefully considered. As U.S. Senators, we have an obligation to ensure that our courts are filled with qualified, impartial judges.

In light of that I must ask--who is Elena Kagan?

In reviewing Ms. Kagan's qualifications, I find her lack of judicial experience striking.

While others note that serving as a judge is not a requirement for a Supreme Court nomination, it has also been noted that every nominee in nearly 40 years to the Supreme Court has had extensive judicial experience, whether from the bench or as a litigator in the courtroom.

Ms. Kagan's litigation experience is limited, with the majority of her arguments being made during her brief tenure as the U.S. Solicitor General.

Given her obvious lack of experience in the court room, one must ask if this is the best position to receive on-the-job-training? Will the ``craft'' of judging come innately to Ms. Kagan or is it a skill honed by years of practice and judicial experience?

Some have argued in defense of such a thin judicial resume that nominees can bring a ``real world''--- whatever that is--- perspective to the bench. Nonetheless, much of the nominee's experience lies in the hallowed, Ivy League, halls of academia, indeed a world of its own.

While I do not question the merits of a strong university background, I question how that makes one more in tune with the ``real world.''

Additionally, the nominee's resume includes her positions as special counsel and policy advisor in the Clinton administration--a role in which she truly relished her job. During her tenure she advocated for policies involving the second amendment.

In response to a Supreme Court decision which struck down the Brady Act's requirement of background checks before gun sales, documents from the nominee's tenure suggested that the administration explore how to maneuver around the Court's decision by executive action.

The advice here goes beyond legal counsel and indicates a clear interest in achieving a policy goal by going around the Supreme Court's decision, while forgoing the jurisdiction of Congress.

When determining how Ms. Kagan may approach a seat on the Court, her position as a policy adviser is one of the few records available to review.

Does this type of maneuvering indicate how Ms. Kagan would use her position as a Supreme Court Justice to justify an agenda where a policy goal is the intended outcome?

I must also say that as dean of Harvard Law School, Ms. Kagan's effort to ban military recruiters from the main placement office on campus is deeply troubling.

The justification for violating the Solomon Amendment--named after Congressman Gerald Solomon--was to protest the military's don't ask, don't tell policy. This action was also consistent with her own expressed views.

It must be noted, blocking access to military recruiters is counter to Federal law.

Only when threatened with the loss of Federal funding, did Harvard comply. Ms. Kagan then used a stayed decision by an appellate court, which determined the Solomon Amendment was unconstitutional, to reinstitute the ban. Shortly thereafter, the Supreme Court overturned the appellate court's decision by an 8-0 ruling.

According to Chief Justice John Roberts, ``A military recruiter's mere presence on campus does not violate a law school's right to associate, regardless of how repugnant the law school considers the recruiter's message.''

I must say, I don't know of any recruiter who would stand up and debate students in the circumstance of a policy judgment--more to the point, in regard to a policy that is as controversial as don't ask, don't tell. They are there to recruit individual students or to answer questions they may have.

U.S. servicemembers deserve our unfettered support, as they face unimaginable danger on the front line in defense of our Nation. Their willingness to sacrifice their time away from home and loved ones while serving in harsh and dangerous places under difficult circumstances should be honored.

It seems to me we dishonor their sacrifices and service by hollow justifications of policy agendas. These efforts are a clear indication to me, as well as my fellow Kansans, that Ms. Kagan's agenda is at odds with her role as a dean and a future Supreme Court Justice, and is clearly out of step with the average American no matter how deep her concern, empathy, values or the real world she believed she could change.

It is clear from her time as a policy adviser during the Clinton administration--a job she truly relished--that she supports methods of enacting policy changes through administrative means and around the jurisdiction of the legislative branch.

This type of disregard for the jurisdiction of the elected branch of government is concerning.

Ms. Kagan's zeal and enthusiasm as a political advisor and an academic does not qualify her for a lifetime appointment to our Nation's highest Court.

Not only does she lack experience on the bench, but her record clearly demonstrates a propensity towards pursuing an activist agenda.

In her own words, Ms. Kagan confessed difficulty in ``taking off the advocate's hat [to] put on the judge's hat.'' This admission is at best worrisome; at worst, a clear indication of her intent to legislate from the bench.

We have a constitutional obligation to ensure that our judges are impartial and faithful to the law. During Chief Justice John Roberts' confirmation hearing, he noted that ``Judges and Justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.'' They may go to criticize the umpire, but they do not go to see him.

I am not convinced that Ms. Kagan will limit herself to merely applying the rules.

Given the limited judicial background and a lack of forthrightness in queries as to her judicial philosophy during the nomination hearings, I am fearful that this nomination will serve as another tool in what we have witnessed in further encroachment of government into the everyday lives of the American people.

Kansans have made clear to me that they do not want activist judges on the Court and they do not want additional government intrusion into their daily lives and pocketbooks, especially coming from the bench.

Unfortunately, I think appointing Ms. Kagan to the Court will result in more of both. Therefore, I must oppose her nomination.

I yield the floor.

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