Russ Feingold (D-Wis.) applauded Elena Kagan’s Supreme Court nomination in his opening statement before the Senate Judiciary Committee for her representation of the growing diversity of the court, but he noted more was needed.
“Women are increasingly outnumbering men on law school campuses across this nation,” he said. “There is no reason they shouldn’t have equal representation on the court. I also hope that we will continue to see greater diversity on the court in other ways — including representation from Midwestern and Western states.”
Feingold also expressed reservation about the court’s increasing tendency to split on 5-to-4 decisions that highlight the “partisan political agenda” of the judges.
Feingold’s complete opening statement is below:
Opening Statement of U.S. Senator Russ Feingold
On the Nomination of Elena Kagan to be Associate Justice of the Supreme Court of the United States
Senate Judiciary Committee
As Prepared For Delivery
“The Supreme Court plays a unique and central role in the life of our nation. Those who sit as Justices have extraordinary power over some of the most important, and most intimate, aspects of the lives of American citizens. The nine men and women who sit on the court have enormous responsibilities, and those of us on this committee have a significant responsibility as well. Ms. Kagan, I hope you will be forthcoming in your answers so that we can have the open and honest discussion of issues that the country deserves.
“In 2005, when we began our confirmation hearings for Chief Justice Roberts, the Court had not seen a new member for 11 years. Now, we are beginning the fourth Supreme Court confirmation hearing in the last five years. And today, for the first time, we begin a hearing on a nomination that could result in three women sitting on the Supreme Court at one time. We have come a long way from the days when Justice Ginsburg was turned down for a prestigious clerkship because she was a woman, or when Justice O’Connor graduated from Stanford Law School but no law firm would hire her as a lawyer, instead offering her a position as a secretary. I hope this is just the beginning. Women are increasingly outnumbering men on law school campuses across this nation. There is no reason they shouldn’t have equal representation on the Court.
“I also hope that we will continue to see greater diversity on the Court in other ways—including representation from Midwestern and Western states. It is important that all Americans feel the Court represents their life experiences and their values, and I think one of the best ways to accomplish that is by selecting candidates for this position who reflect the full diversity of this great country.
“The Court that is now taking shape, and that Elena Kagan will join if she is confirmed, will shape the country for years to come. It will address the most crucial legal issues affecting our national security and the freedoms of our citizens. It will decide what limits there are on how the people’s elected representatives can solve the difficult economic and social problems that face the country. It will confront questions of race that are as old as our nation and as new as the changing demographics of the 21st century.
“Because the questions that will come before the Court in the next few decades are so weighty, it is unfortunate that a growing segment of America seems to have lost its trust in the Court and the Justices. Supreme Court cases by their nature can divide the country. Important cases with far-reaching consequences are often decided by a 5-4 vote. So it is absolutely essential that the public have confidence that those decisions are not made on the basis of an ideological or partisan political agenda. The fairness, objectivity and good faith of Justices should be beyond question.
“But when a decision like the one handed down earlier this year by a 5-4 vote in the Citizens United case uproots longstanding precedent and undermines our democratic system, the public’s confidence in the Court can’t help but be shaken. I was very disappointed in that decision, and in the Court for reaching out to change the landscape of election law in a drastic and wholly unnecessary way. By acting in such an extreme and unjustified manner, the Court badly damaged its own integrity. By elevating the rights of corporations over the rights of people, the Court damaged our democracy.
“Ms. Kagan, if you are confirmed, I hope you will keep this in mind. I hope you will tread carefully, and consider the reputation of the Court as a whole, when evaluating whether to overturn long-standing precedent in ways that will have such a dramatic impact on our political system. You have developed a reputation as someone who can reach out to those with whom you may not agree and work together, and I think that is a skill that will prove to be very useful and valuable if you are confirmed. You also have an impressive legal education, you have worked at the highest levels of government, and you have taught and written about the law. I have no doubt that you understand our system of government and the roles of the three branches. But more importantly, I hope you understand and appreciate the impact that the law has on the lives of all Americans.
“So my hope is that your diverse experiences, your thoughtfulness and openness, and your talent for consensus-building will allow you to see the long-term dangers to the Court and to the country of a decision like Citizens United – and enable you, if confirmed, to convince your colleagues to avoid making similar mistakes in the future.
“I also hope that you will have the wisdom and the courage that the Justice you have been nominated to replace, Justice John Paul Stevens, showed time and time again in drawing the line against an executive branch that sought powers that endangered the individual rights and freedoms that our Constitution guarantees.
“Ms. Kagan, judging isn’t easy. It’s not just a matter of calling balls and strikes, because judges, and particularly Justices on the Supreme Court, are called upon to apply constitutional values that, as former Justice Souter said recently, ‘may well exist in tension with each other, not in harmony.’ In these hearings, you have the opportunity to show the American people that you have the right combination of qualities and qualifications to make a good Justice. I wish you well in that task, and I look forward to the conversation you will have not only with me, but with my colleagues and with the country.”