WASHINGTON, D.C. – Senator John Kerry (D-Mass.) today delivered the following remarks at the confirmation hearing of Solicitor General Elena Kagan to be the next Associate Justice of the Supreme Court of the United States:

John Kerry (Gov)

Mr. Chairman, 16 years ago I had the privilege to introduce Stephen Breyer to this Committee.

With the loss today of Senator Byrd, I am particularly reminded of Senator Kennedy sitting beside me that day. As you know, Ted served on this Committee for 46 years – and I know the pride he would feel seeing Elena Kagan nominated for the Supreme Court of the United States.

When Ted introduced then-Judge Breyer, he quoted Oliver Wendell Holmes that “every calling is great when greatly pursued.” Those words applied to Stephen Breyer, and I can share with you my complete confidence that they apply equally to Solicitor General Elena Kagan.

Massachusetts is proud of Elena Kagan’s accomplishments, and we believe that through these hearings as you get to know her as we do, she will earn broad bi-partisan support just as she did when she was nominated as Solictor General.

By now we have learned the high points of her record – a trailblazing pace culminating in her selection as the first woman to serve as Dean of Harvard Law School and the first woman to serve as Solicitor General.  If confirmed, she will make history once again.  In an America where women comprise more than half the population, she’ll join Justices Ginsberg and Sotomayor and for the first time in our history, a full third of the Court will be women.

But there’s much more that distinguishes Elena: Her life has been characterized by her passion for public service and her awareness of what it means to be a public citizen. A close friend from her days clerking for Justice Marshall, remembers Elena interviewing at a big law firm in New York, meeting with a young partner who – with no family to support – was pulling in close to a million dollars a year. So Elena asked him, “What do you do with all that money.” And he replied, “I buy art.” Elena just shook her head in the conviction that there were better ways to expend her life’s work, and she continued to pursue efforts to more directly impact the lives of those around her.

Elena’s skills and intellect quickly brought her to the attention of the Clinton White House which is when I first got to know her.  I’d been asked by the Chairman of the Commerce Committee to help break through a stalemate on a bi-partisan tobacco bill. It was a difficult issue for both caucuses.  Elena became the Administration’s point person.  When we started out, no one gave us hope of getting close to passage. But Elena camped out in the Vice President’s office off the Senate floor, shuttling back and forth to the White House. She worked night and day, working every angle, thinking through every approach. On the eve of the Commerce Committee’s markup, things seemed to be falling apart. But Elena wasn’t going to let that happen.  She got together with the Republican senators and staff, listened carefully, and helped all of us to meet the last minute objections. It was classic Elena – she saw a path forward when most folks saw nothing but deadlock. And it led to a 19-1 vote to pass the bill out of Committee – a mark of bi-partisanship that few imagined was possible.

She was tough and stubborn when necessary, but she also knew when it was necessary to strike a compromise. She had a knack for knowing how to win people over – an ability to make people see the wisdom of an argument.  I remember lots of late nights in a very quiet Capitol building, walking off the Senate floor to meet with my staff and Elena.  And, invariably, Elena would have another new idea, a fresh approach. It was a tutorial in  consensus-building from someone for whom that was pure instinct – and it won Elena the respect of Republicans and Democrats alike.

No doubt her hands-on experience working the governing process is a critical component of what makes her a terrific choice – someone who really understands how laws are created and the real-world effects of their implementation. It’s a reminder why some of the greatest Justices in our history were not judges before they sat on the highest Court  - and among those are names like Frankfurter and Brandeis.

I might add that she brought the same pragmatic knack for consensus building to her stewardship at Harvard Law. There she found what was affectionately acknowledged as a dysfunctional and divided campus – and transformed it again into a cohesive institution, winning praise from students and faculty across the ideological spectrum.  Elizabeth Warren, Elena’s colleague at Harvard and Chair of the Congressional panel overseeing our relief efforts, says simply “she changed morale around here.”

Charles Fried, the former Solicitor General under President Reagan and renowned conservative constitutional expert, says of her prospects as a Justice: “I think Elena would be terrific – because, frankly, the Court is stuck. The great thing about Elena is there’s a freshness about her that promises some possibility of getting away from the formulas that are wheeled out today on both sides.  I have no reservations about her whatsoever.”

John Manning, the first hire under Kagan’s deanship – a conservative and an expert on textualism and separation of powers says: “I think one of the things you see in Kagan as Dean was that she tried to hire folks with different approaches to law and different ideological perspectives.  She was equally as strong in her praise for Scalia as she was in her praise for Breyer – she celebrated both.  It’s a good predictor of how she’ll be as a judge.  She would be fair and impartial – the sort of judge who would carefully consider briefing and argument in every case. The sort of judge I would want if I didn’t know which side of the case I was arguing.”

And so, my colleagues, I’m glad that in these next days you’ll get the chance to know Elena as so many of us have in Massachusetts -as an extremely capable public servant well grounded in the Constitution, and committed to the values we all share as Americans.

I always remember what Justice Potter Stewart said about what makes a first rate judge. He said “The mark of a good judge is a judge whose opinion you can read and . . . have no idea if the judge was a man or woman, Republican or Democrat, a Christian or Jew . . . You just know he or she was a good judge.”  I believe Elena Kagan will meet that standard – and I have every confidence that she’ll be outstanding in every sense of the word.

Thank you, Mr. Chairman, for the privilege of introducing this fine person on this historic day.

Monday, the first day of what will likely be a weeklong confirmation hearing for Supreme Court nominee Elena Kagan, was devoted to opening statements from members on the Senate Judiciary Committee. The opening statements of all committee members are available below.

Democrats

Patrick Leahy (D-Vt.)  – Chairman

Herb Kohl (D-Wis.)

Dianne Feinstein (D-Calif.)

Russ Feingold (D-Wis.)

Arlen Specter (D-Pa.)

Charles Schumer (D-N.Y.)

Richard Durbin (D-Ill.)

Benjamin Cardin (D-Md.)

Sheldon Whitehouse (D-R.I.)

Amy Klobuchar (D-Minn.)

Ted Kaufman (D-Del.)

Al Franken (D-Minn.)

Republicans

Jeff Sessions (R-Ala.) – Ranking Member

Orrin Hatch (R-Utah)

Charles Grassley (R-Iowa)

Jon Kyl (R-Ariz.)

Lindsay Graham (R-S.C.)

John Cornyn (R-Texas)

Tom Coburn (R-Okla.)

Introduction

John Kerry (D-Mass.)

Scott Brown (R-Mass.)

Al Franken (D-Minn.) (gov)

Statement of

The Honorable Al Franken

United States Senator
Minnesota
June 28, 2010

REMARKS ON SOLICITOR GENERAL ELENA KAGAN’S SUPREME COURT CONFIRMATION HEARING

Thank you Mr. Chairman. General Kagan, I’m last.

Every Senator who has spoken before me has sworn to “support and defend the Constitution of the United States.” And so have I. There are few things that we do that are more important to fulfilling that oath than making sure that the Justices of the United States Supreme Court are brilliant, humane, and just individuals.

But these hearings are also a learning experience for Minnesotans and all Americans watching at home. Before I joined the Senate, I watched at least part of every Supreme Court confirmation hearing that was televised. And I think part of my job here is to continue that learning experience for the American people.

Now, last year, I used my time during these hearings to highlight what I think is one of the most serious threats to our Constitution and to the rights it guarantees the American people: the activism of the Roberts Court.

I noted that for years, conservatives running for the Senate have made it almost an article of faith that they won’t vote for activist judges who make law from the bench. And when asked to name a model justice, they would often cite Justice Thomas, who I noted has voted to overturn more federal laws than Justices Stevens and Breyer combined. In recent cycles, they would name Chief Justice Roberts.

Well, I think we established very convincingly during the Sotomayor hearings that there is such a thing as judicial activism. There is such a thing as legislating from the bench.

And it is practiced repeatedly by the Roberts Court, where it has cut in only one direction: in favor of powerful corporate interests, and against the rights of individual Americans.

In the next few days, I want to continue this conversation. Because I think things have only gotten worse.

And so I want to say one thing to the Minnesotans watching at home: With few exceptions, whether you’re a worker, a pensioner, a small business owner, a woman, a voter, or a person who drinks water, your rights are harder to defend today than they were five years ago.

Our state has been victim to the third-largest Ponzi scheme in history.

And yet in 2008, in a case called Stoneridge, the Roberts Court made it harder for investors to get their money back from the people that defrauded them.
The Twin Cities have more older workers per capita than almost any other city in the nation.

And yet in 2009, in a case called Gross, the Roberts Court made it easier for corporations to fire older Americans and get away with it.

Minnesota has more wetlands than all but three states.

And yet in a case called Rapanos, the Court cut countless streams and wetlands out of the Clean Water Act—even though they’d been covered for up to 30 years.

Our state has banned all corporate spending on elections since 1988.

And yet in January, in Citizens United, the Roberts Court nullified our laws and turned back a century of federal law by allowing corporations to spend as much money as they want, whenever they want, in our elections.
Not just federal elections. Duluth elections. Bemidji elections. Minnesota elections.

There is a pattern here. Each of these decisions was won with five votes. And in each of these decisions, that bare majority used its power to help big business.

There’s another pattern here. In each of these decisions, in every one, Justice John Paul Stevens led the dissent.

Now Justice Stevens is no firebrand liberal. He was appointed to the Seventh Circuit by Richard Nixon. And he was elevated to the Supreme Court by Gerald Ford. By all accounts, he was considered a moderate.

And yet he didn’t hesitate to tell corporations that they aren’t a part of “‘We the People,’ by whom and for whom our Constitution was established.” And he didn’t flinch when he told a President that “the Executive is bound to comply with the rule of law.”

General Kagan, you’ve got big shoes to fill.

But before I turn it over to you, General Kagan, I want to talk a bit more about one of the decisions I mentioned. I want to talk more about Citizens United.

Now, you’ve heard a lot about this decision already today, but I want to come at it from a slightly different angle.
There is no doubt: the Roberts Court’s disregard for a century of federal law—and decades of the Supreme Court’s own rulings—is wrong. It’s shocking. And it’s torn a gaping hole in our election laws.

So of course I’m worried about how Citizens United is going to change our elections.

But I am more worried about how this decision is going to affect our communities—and our ability to run those communities without a permission slip from big business.

Let me give you two examples of what I am talking about.

In the early 1960s, car companies knew that they could avoid a large number of fatalities just by installing seat belts in every vehicle. But they didn’t want to. They said “safety doesn’t sell.”

But Congress didn’t listen to the car companies. And so in 1966, Congress passed a law requiring that all passenger cars have seatbelts.

Since then, the fatality rate from car accidents has dropped 71 percent.

Here’s another story. Around the same time that we passed the seatbelt law, people started to realize that the leaded gasoline that cars ran on was poisoning our air. But oil companies didn’t want to take the lead out of gasoline. Because altering their refineries was going to be, in the words of the Wall Street Journal, a “multi-billion dollar headache.”

But in 1970, Congress passed the Clean Air Act anyway. And thanks in part to that law, by 1995, the percentage of children with elevated levels of lead in their blood had dropped by 84%.

Along with the Clean Water Act of 1972, the Clean Air Act of 1970 and the Motor Vehicle Safety Act are three of the pillars of modern consumer safety and environmental laws.

But here’s something else they have in common. They were all passed around 60 days before an election.

Do you think those laws would have stood a chance if Standard Oil and GM could have spent millions of dollars advertising against vulnerable congressmen, by name, in the last months before their elections?

I don’t.

So here’s my point, General Kagan: Citizens United isn’t just about election law. It isn’t just about campaign finance.

It’s about seat belts. It’s about clean air and clean water. It’s about energy policy and the rights of workers and investors. It’s about health care. It’s about our ability to pass laws that protect the American people even if it hurts the corporate bottom line.

As Justice Stevens said, it’s about our “need to prevent corporations from undermining self-government.”

But I think that you get that. Maybe more than anyone else in this room.

General Kagan, you’ve shown remarkable skill as a lawyer for our government, and remarkable candor as one of its critics—say, for example, of Supreme Court confirmation hearings. I like that.

I want to see that legal skill in action. And I want to see if you might continue the work of Justice Stevens.

Thank you, Mr. Chairman.

Ted Kaufman (photo by Ryan J. Reilly / Main Justice)

Sen. Ted Kaufman (D-Del.) said at the nomination hearing Monday for Supreme Court nominee Elena Kagan that the would-be justice’s lack of judicial experience is not a black mark on her record.

Kaufman said several justices have come to the court without a judicial background, including Justices Earl Warren and William Rehnquist.

“Some pundits, and some senators, have suggested that your lack of judicial experience is somehow a liability,” Kaufman said. “I could not disagree more. While prior judicial experience can be valuable, the court should have a broader range of perspectives that can be gleaned from the appellate bench.”

Full remarks are embedded below.

Ted Kaufman Opening Statement at Supreme Court Confirmation Hearing of Solicitor General Elena Kagan

Welcome, Solicitor General Kagan, and welcome also to your family and friends. Like my colleagues, I want to congratulate you on your nomination.

We are now beginning the end of an extraordinarily important process. Short of voting to go to war, a Senator’s constitutional obligation to “advise and consent” on Supreme Court nominees is probably his or her most important responsibility. Supreme Court justices serve for life; once the Senate confirms a nominee, she is likely to affect the law and the lives of Americans much longer than the Senators who confirmed her.

As senators, I believe we have an obligation not to base our decision on empty political slogans, or on charges of guilt by association, or on any litmus test. Instead, we should focus on your record and your answers to our questions, which will allow us to determine whether you have the qualities necessary to serve all Americans, and the rule of law, on our nation’s highest court.

Over the years, as chief of staff to then-Senator Biden, teaching at Duke Law School, and as a Senator myself, I’ve thought a lot about the qualities I believe a Supreme Court nominee should have: A first-rate intellect; significant experience; unquestioned integrity; absolute commitment to the rule of law; unwavering dedication to being fair and open-minded; and the ability to appreciate the impact of court decisions on the lives of ordinary people.

Last year, when Justice Souter announced his retirement, and again when Justice Stevens announced his retirement this April, I suggested that the Court would benefit from a broader range of experience among its members. My concern was not just the relative lack of women or racial or ethnic minorities on our federal courts, though that deficit remains glaring.

I was noting the fact that the current Justices all share very similar professional backgrounds. Every one of them served as a federal circuit court judge before being appointed to the Supreme Court. Not one of them has ever run for political office, like Sandra Day O’Connor or Earl Warren or Hugo Black.

General Kagan, I am heartened by what you would bring to the Court based on your experience working in and with all three branches of government, the skills you developed running a complex institution like Harvard Law School, and yes, the prospect of your being the fourth woman to serve on our nation’s highest court.

Some pundits, and some Senators, have suggested that your lack of judicial experience is somehow a liability. I could not disagree more. While prior judicial experience can be valuable, the Court should have a broader range of perspectives than can be gleaned from the appellate bench.

General Kagan, you bring valuable non-judicial experience and a freshness of perspective that is lacking on the current Court. In the history of the Supreme Court, more than one-third of the Justices have had no prior judicial experience before being nominated. And a nominee’s lack of judicial experience has certainly been no barrier to success.

When Woodrow Wilson nominated Louis Brandeis in 1916, many objected on the ground that he had never served on the bench. Over his 23-year career, however, Justice Brandeis proved to be one of the Court’s greatest members. His opinions exemplify judicial restraint and his approach still resonates in our judicial thinking more than 70 years after his retirement.

Felix Frankfurter, William Douglas, Robert Jackson, Byron White, Lewis Powell, Harlan Fiske Stone, Earl Warren and William Rehnquist all became justices without having previously been judges. And they certainly had distinguished careers on the Supreme Court.

As Justice Frankfurter wrote about judicial experience in 1957, “One is entitled to say without qualification that the correlation between prior judicial experience and fitness for the functions of the Supreme Court is zero.”

We’ve all now had the opportunity to review your extensive record as a lawyer, a policy advisor, and administrator. Throughout your career, you have consistently demonstrated the all-too-rare combination of a first-rate intellect and an intensely pragmatic approach to identifying and solving problems.

Last summer, during then-Judge Sotomayor’s confirmation hearing, I focused on the current Court’s handling of business cases. I am convinced, by education, experience, and inclination, that the integrity of our capital markets, along with our democratic traditions, is what makes America great. Too often, however, today’s Supreme Court seems to disregard settled law and congressional policy choices, in order to promote business interests at the expense of the people’s interests.

Whether it’s pre-empting state consumer protection laws in Medtronic, striking down punitive damages awards in Exxon, restricting access to the courts in Twombly, or overruling 96 years of pro-consumer antitrust law in Leegin, this Court gives me the impression that in business cases, the working majority is business-oriented to a fault.

The Exxon case demonstrates how this pro-business orientation can affect the lives of ordinary people. In that case, four of the eight Justices who participated voted to bar all punitive damages in maritime cases against employers like Exxon for their employees’ reckless conduct.

Justice Alito did not participate in the case, so the Court split four-to-four on this point. But had he participated, and voted with the conservatives on the Court, then today individuals harmed by oil spills like Exxon Valdez would be subject to a flat ban on punitive damages in maritime actions. As we consider the current disaster in the Gulf, that prospect is worth contemplating.

The Court’s decision last fall in the Citizens United case, which several of my colleagues have mentioned, is the latest example of the Court’s pro-corporate bent. The majority opinion in that case should put the nail in the coffin of claims that “judicial activism” is a sin committed by judges of only one political ideology.

What makes The Citizens United decision particularly troubling is that it is at odds with what some of the Court’s most recently confirmed members said during their confirmation hearings. We heard a great deal then about their deep respect for existing precedent. Now, however, that respect seems to vanish whenever it interferes with a desired pro-business outcome.

As I’ve said before, charges of judicial activism are often unhelpful – empty epithets divorced from a real assessment of judicial temperament. But that doesn’t mean the term “judicial activism” is necessarily meaningless.

If we want to take the term seriously, it might mean a failure to defer to the elected branches of government; it might mean disregard for long-established precedent; it might mean deciding cases based on personal policy preferences rather than the law; or it might mean manipulating a case to get at issues not squarely presented by the parties.

By any of these definitions, the decision in Citizens United was highly “activist.” The Court summarily overturned years of settled precedent and statutory law that had limited the influence of corporate electioneering. Moreover, the Court took it upon itself to order that the case be re-argued on broad constitutional grounds, which neither party had asked it to do. In effect, the Justices wrote their own question of the case in order to obtain their desired result.

I share the fear expressed by Justice Stevens in his dissent – that the Court’s focus on results rather than the law in this and other cases will do damage to the Court as an institution.

General Kagan, I plan to spend the bulk of my time asking you about the Court’s business cases, based on my concern about its apparent bias.

One of the aspirations of the American judicial system is that it render justice equally to ordinary citizens and the most powerful. We need Justices on the Supreme Court who not only understand that aspiration, but also are committed to making it a reality. For Americans to have faith in the rule of law, we need one justice system in this country, not two.

Very soon, those of us up here will be done talking, and you’ll have the chance to testify, and then to answer our questions. I look forward to your testimony.

Arlen Specter (D-Pa.) (gov)

Arlen Spector (D-Pa.) called on Supreme Court nominee Elena Kagan to make her hearing before the Senate Judiciary Committee meaningful — unlike her earlier description of the process as a “vapid” and “hollow” charade — and pressed the nominee to respond to questions on what cases she would hear on the court.

“The court, regrettably, has become an ideological battleground,” he said.

Spector said he saw the Constitution “change almost daily” during the 1960s, and expressed his hope that, if confirmed, Kagan would espouse a moderate worldview.

He also voiced his intent to question the nominee on what case she would vote to hear before the court as a justice.

“It has been accepted that there should not be a transgression into the area of judicial independence on how a case would be decided,” he said, referring to ban on requiring nominees to speak on how they might rule on issues. “[But the ban] leaves the judge, at least so far as that standard [of what cases will be heard] is concerned, the latitude to answer that question”

Chuck Schumer (D-N.Y.) (gov)

Before the Senate Judiciary Committee hearing on Supreme Court nominee Elena Kagan, Charles Schumer (D-N.Y.) expressed confidence that Kagan would be confirmed and jokingly said she might be confirmed after a signle round of questioning.

To back up his claim, Schumer pointed to the more than 170 thousand documents on Kagan’s background available for review by the committee, which he said painted a pragmatic and moderate picture.

He also criticized the current Supreme Court for it’s recent decision in Citizens United v. Federal Election Commission.

“Judicial activism now has a new guise,” he said.

Schumer said the he feared the “palpable” swing of the court toward the right over the past decade and found the decision reached in Citizens United to undermine the voice of average Americans and the notion of political freedom.

“[The court] has lost sight of the practical consequences of some of its decisions,” he added.

However, Schumer said he believed Kagan would bring much needed “moderation and pragmatism” to the court. He also cited her ability to work with those who do not share her views, exemplified by her work as the first dean of Harvard Law School to bring together a divided faculty.

“Her actions are not the actions of an ideologue,” he said.

Benjamin Cardin (D-Md.) (gov)

Benjamin Cardin (D-Md.) praised Supreme Court nominee Elena Kagan’s brief time as Solicitor General and said he hoped she would help build consensus on a deeply divided court.

Cardin also remarked on the noticeably less fervent media coverage regarding the hearing, but he said the examination was no less important.

“My goal is to ensure that you have a clear understanding of how profound an impact your future decisions may have on the lives of everyday Americans,” he said. “I also will do all I can to ensure that the American people … gain a better understanding of how the Supreme Court … really does affect your lives.”

Cardin said Kagan’s role as Solicitor General has shown her ability as a “unquestioned legal scholar, a proven leader and a dedicated public servant.” He also pointed to her place outside the judiciary as a strong reason for confirmation.

“Yet I know that having served as Solicitor General — a position often referred to as the 10th justice — you are well prepared for the day-to-day responsibilities of the court,” he added.

Full remarks are embedded below.

Thank you, Chairman Leahy.  Solicitor General Kagan, welcome back to the Judiciary Committee. Last year, I had the privilege of chairing your confirmation hearing for the position of Solicitor General. While we had a spirited debate at that time, I think we can agree that there was not quite as much media attention to that hearing as there is today.

Why is that? As I prepared for this week’s hearings, I have been thinking about the role of the Supreme Court and the Constitution in our lives. Many people may say—to paraphrase our Vice President- “Why is this such a big deal? Why should I care? Does the Supreme Court really impact my life or my family?�

If you have children, if you work for a living, if you are a woman, if you vote, if you care about the air we breathe or the water we drink, you need to pay close attention to this confirmation hearing and the work of the Supreme Court.

The Constitution has a very tangible impact on all our lives. It is the foundation of our rule of law that is supposed to protect us from the abuses of power- ABUSES OF GOVERNMENT, ABUSES OF BIG BUSINESS.

The very words that open our Constitution tell us why we ALL should care so much about who is on the Supreme Court and who will be responsible for upholding our laws.

“We the people of the United States- WE THE PEOPLE- in order to form a more perfect union, ESTABLISH JUSTICE, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution of the United States of America.�

The authors of the Constitution understood the timeless idea that Justice was paramount. As we gather this week to consider your nomination, Ms. Kagan, to be just the 112^th person-and only the fourth woman—to serve on our highest court, my goal is to ensure that you have a clear understanding of how profound an impact your future decisions may have on the lives of everyday Americans. Based on our conversations, I trust that you will put the interest of the American people and justice for the American people, first, above popular opinion or politics.

I also will do all I can to ensure that the American people, whether you are watching this hearing at home, at work, or at school, gain a better understanding of how the Supreme Court, which has a duty to uphold the Constitution, really does affect your lives. The principles outlined in the Constitution are not some abstract, historical theory. At its heart, our Constitution and the rule of law is about people – We the People.

Let’s start with families and children. As a personal example, I — along with millions of American school children — was denied a full education opportunity in our schools because I was forced to attend segregated public schools. The Supreme Court, in Brown v. Board of Education, rejected the notion of separate but equal and helped move our nation forward toward a “more perfect union.â€� It was a young attorney, from Baltimore, who argued that case before the Supreme Court. He later became the first African-American to serve on the Supreme Court. Justice Thurgood Marshall had one of the most distinguished records on the court, aided by energized law clerks including our nominee, Elena Kagan.

If you believe that you have a right to fall in love and get married to whomever you wish, you are mostly correct, but only because the Supreme Court intervened on the side of the American people when it ruled in Loving vs. Virginia that inter-racial couples could marry. Indeed prior to that decision, the parents of the current President of the United States and some members of this United States Senate could not have been married in some states of this Nation.

If you believe that what you do in your own home, in your own bedroom, is your business and no one else’s – especially not the government’s – you also are correct, but only because Supreme Court decisions like Griswold v. Connecticut and Lawrence v. Texas reinforced the individual’s right to privacy, keeping government out of the private consensual activities of adults.

The Supreme Court was on the side of the American people when it ruled in Roe v. Wade that the constitutional right to privacy exists. The court ruling was not taking sides in a debate on abortion:  it was stating that there are certain matters in which government should not interfere in the privacy of families. Likewise, the court has ruled that every person is entitled to their religious beliefs – or lack thereof – but the Constitution makes it clear through the establishment clause that Congress cannot show preference to a religion.

So many of these cases are categorized as “landmarks� because they continued a forward progression of protections for the American people against abuses of power, particularly by an over-reaching government. Such was the case when the Supreme Court ruled in Gideon v. Wainwright that the constitutional right to counsel in criminal proceedings was guaranteed regardless of the wealth of the defendant. The Supreme Court gave the words “equal justice under the law� real meaning. Perhaps this decision was to be expected, since the oath of office declared by every federal judge makes it clear that he or she “will administer justice without respect to persons and do equal right to the poor and to the rich.�

I believe that our next Associate Justice and the whole Supreme Court should be guided by legal precedent and the best traditions of the Supreme Court in advancing constitutional rights for individuals against the abuses of power, whether by government or businesses, even as our world continues to change and evolve. Justice Thurgood Marshall said in a 1987 speech, “I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today.�

Some change has not been for the better, I have been troubled by the increasing number of 5-4 decisions over the last five years in which a divided Supreme Court reversed decades of progress and precedent with rulings that side with powerful corporate interests rather than protecting individual rights. This trend was clearly shown in Citizens United where the Supreme Court reversed precedent and over-ruled Congressional intent giving corporate special interests even more power and influence in elections. In the Ledbetter case, the majority of the Supreme Court protected employers over workers in gender discrimination, again reversing the clear intent of Congress. In another 5-4 split court decision, Gross v. FBL Financial, the Court made it easier for corporate America to discriminate against aging Baby Boomer workers.

If you work for a living, if you are a woman, or if you are worried that corporations can buy a louder voice in an election than hardworking, everyday Americans, you need to keep an eye on the activism being practiced by this Supreme Court.

Are you a consumer? Do you buy products for you or your family? If so, the Supreme Court in Leegin – yet another 5-4 split – should be of concern to you too. Here, the court ignored long-standing precedent to protect big business to perpetuate price fixing. It was a ruling that put consumers at risk.

Rapanos also was a step backwards, this time for the environment by reducing protection for wetlands under the Clean Water Act. If you are like the rest of us and wonder if BP will be held fully accountable for the economic and environmental devastation brought on by the ongoing oil spill in the Gulf of Mexico, you will be equally alarmed by the Supreme Court’s decision in Exxon v. Baker which imposed limits on damages that can be recovered in environmental disasters.

Time and time again, by the narrowest of margins, this activist court has sided with big businesses over Main Street America wiping away protections set in place by years of legal precedent and congressional action.

Just last month, the court – once again by a 5-4 decision – ruled against the individual protections enshrined in the Constitution and its Bill of Rights. In the Tompkins case, the court reversed prior decisions and weakened such cases as Miranda – a bedrock of our legal system – by offering a counterintuitive pronouncement that an accused has to speak up in order to remain silent. I believe that “innocent until proven guilty� and the “right against self-incrimination� are still part of our system of law.

Having just joined the Senate in 2007, I have had just one other opportunity to exercise my constitutional duty to provide “advise and consent� for a Supreme Court Justice. I was proud to see that Justice Sonia Sotomayor, who I voted to confirm last year, authored the dissent opinion in the Tompkins case. Unfortunately, it seems only a minority of the current court understands the concept that the rule of law should be defined by the law itself and not public opinion.

As Justice Stevens stated in Citizens United, “Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law…there were principled, narrower paths that a Court that was serious about judicial restraint could have taken.�

I join him in wondering just how or why those who profess to oppose judicial activism have voiced their support for these Supreme Court decisions in which justices have over-turned long-standing precedent and substituted their own legislative voices for Congress, blurring the line between the legislative and judicial branches of government.

Justice Stevens followed in the best traditions of the Supreme Court in advancing individual Constitutional rights. His name will stand beside John Marshall, Louis Brandeis, Thurgood Marshall, and Sandra Day O’Connor as giants in our nation’s highest court. Elena Kagan comes to this confirmation hearing with very impressive credentials to help fill the shoes of Justice Stevens.

As I said earlier, I had the honor to chair her confirmation hearing for Solicitor General. Like Justice Stevens, she is a known consensus builder. She also is an unquestioned legal scholar, a proven leader, and a dedicated public servant. As someone who has worked my whole career to expand access to “justice for all,� I have been particularly impressed by her record at Harvard of greatly expanding the number of law school clinics, which provide essential pro bono work for individuals who otherwise could not afford legal representation.

Ms. Kagan, I consider it a strength that you come from outside of the judiciary, yet I know that having served as Solicitor General – a position often referred to as the 10^th justice – you are well prepared for the day-to-day responsibilities of the Court.  You join a distinguished line of justices, including William Howard Taft, Stanley Forman Reed, Robert H. Jackson, and, of course, Thurgood Marshall, all of whom served as U.S. Solicitor General before serving on the high court. I expect that your broad experiences will serve you and the American public well.

I welcome the American public to these hearings as we open a window to the Supreme Court and shine a light on the critical role the Constitution and the rule of law plays in all our lives. I come to these hearings not solely as a U.S. Senator, a legislator, and a lawyer, but as a husband, father, and grandfather. Every ruling made by the Supreme Court that continues to uphold the constitutional protections that keep my granddaughters and their future safe and secure is a victory. Every Supreme Court ruling that opens the door to abuses of power, by the government or big corporations, by over-turning long-standing precedent or reversing Congressional intent, puts my granddaughters, and your granddaughters, and your children at greater risk.

I will do all I can within my power to protect my family and every American family from such risks.

Solicitor General Kagan, I welcome you to this confirmation hearing and look forward to your testimony and responses to our questions.

Sen. John Cornyn (R-Texas) Opening statement on Supreme Court nominee Elena Kagan

“Solicitor General Kagan, let me join in welcoming you to these hearings. In the last five years, this committee has met four times to consider a new Supreme Court nomination. Given our recent hearings, I think it’s vital to recall the core principles that should guide this Committee in carrying out its constitutional duty to provide advice and consent on Supreme Court nominations.

“There are two basic visions of the role of judges in America, including the Supreme Court. In the traditional vision, the courts enforce the written Constitution. They enforce the constitutional guarantees that the Framers wrote into the text of the Constitution. Under this traditional vision, a court, including the Supreme Court, has a limited — some have called it, a modest role —albeit important. No court of law has the authority to invent new rights just because a judge thinks it’s a good idea.

“That’s important because the power to make new laws belongs to the people, not the judges, not even the Supreme Court of the United States. When the Supreme Court creates new rights, the Justices take away the power of the people to govern themselves through their elected representatives. That’s not how our democracy is supposed to work.

“Of course, that doesn’t mean the meaning of the Constitution must remain fixed. The Constitution itself tells us how to change it: Article Five offers two different ways the Constitution can be amended. First, Congress can propose amendments that the States can then approve. Second, Congress can call for a constitutional convention to propose amendments. Either way, the ultimate power to change the Constitution rests with the people, not the courts.

“That’s the traditional vision. We can contrast that traditional vision with the activist vision. Under the activist vision, the Justices on the Supreme Court should feel free to change the Constitution when they see a problem that they want to solve.

“According to the activist view, the Constitution is a so-called living document. It’s a living document because the judges change it when they want to without requiring consent from the American people.

“This activist vision takes the power of the people to make the law and change the law – and gives that power to the judiciary who make the rules for the rest of us. This stands in stark contrast to the founders vision, perhaps best expressed in Federalist number 78, that the judiciary would be the “least dangerous branch” to the political rights in the Constitution because, in Hamilton’s memorable words, ‘[t]he judiciary . . . has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment.’

“Unfortunately, some Justices on the Supreme Court today still embrace the activists’ role. We saw it just last month in Graham v. Florida, a 5-4 decision overturning the judgment of the Florida legislature that allowed a life sentence for robberies. Three Justices — Stevens, Ginsburg, and Sotomayor — explained that their interpretation of the Constitution could change year-to-year and “will never stop” changing.

“Sometimes judicial activists create new rights – and sometimes they actively undermine the rights in our Constitution. For example, we can see the different approaches to constitutional interpretation in this morning’s landmark 5-4 decision on gun rights, McDonald v. City of Chicago. The five Justices who voted to apply the Second Amendment to the Chicago gun ordinance relied on history and precedent. On the other hand, the four Justices who voted not to apply the Second Amendment instead relied heavily on public policy arguments.

“The question raised by every Supreme Court nomination is whether the nominee believes in the traditional vision or the activist vision. Does the nominee believe that the courts should make policy like Congress, even though it is not accountable to the people via elections? Will the nominee enforce the written Constitution and not invent new rights? Or will the nominee see it as her job to change the Constitution to better match her policy preferences?

“Solicitor General Kagan, because you have never been a judge, what we do know about you begins, and largely ends, with your resume. We know you were a law clerk to two federal judges, and we know you served in the Clinton Administration as an advisor on many hot-button political questions, including abortion, gun rights, and affirmative action.

“We also know that you have spoken about your judicial heroes. One hero is Justice Thurgood Marshall, for whom you served a law clerk. Thurgood Marshall, of course, was a famous lawyer for, among other cases, having won the landmark civil rights case Brown v. Board of Education. But from his self-described judicial philosophy and his performance on the bench, it is clear that Justice Marshall was a judicial activist as I have described that phrase earlier. Thurgood Marshall described his judicial philosophy as ‘do what you think is right and let the law catch up.’

“Solicitor General Kagan, we know President has the right to nominate whoever he wishes. It is noteworthy, however, that among his nominees, President Obama has chosen several nominees who are clearly outside the judicial mainstream. One pending nominee bent the rules to try to keep a confessed serial killer from the death penalty. Another pending nominee has argued that there is a constitutional right to welfare payments. A third nominee argued that federal judges should internationalize our law, matching it to views abroad. These are not mainstream positions. These, in my view, are disqualifying positions.

“One challenge of this hearing is that even nominees that have expressly rejected the activist view before this committee — call it a confirmation conversion — have changed their tune after their confirmation. Last year Justice Sotomayor came before this Committee and pledged allegiance to the traditional view. She testified that ‘Judges can’t rely on what’s in their heart. They don’t determine the law. The job of a judge is to apply the law.’

“But in her first term on the Court, just finished today, Justice Sotomayor, she has voted with the liberal bloc of the court — which unabashedly embraces an activist judicial philosophy — about 90% of the time.

“You have written in a 1995 law review article, that ‘the critical inquiry’ of judicial confirmation hearings must be ‘the perspective [the nominee] would add’ and ‘the direction in which she would move the institution.’ I agree. It is important in these hearings to find out whether you would move the Supreme Court in a traditional or activist direction.

“The Constitution’s protections such as federalism, the Takings Clause, and the Second Amendment right to keep and bear arms are just a few obvious areas of inquiry. Solicitor General Kagan, the burden of proof is on you. I hope you can persuade us of the path you would take if you are confirmed to the Supreme Court. I welcome you to the Senate and I look forward to your testimony.”

Richard Durbin (D-Ill.) (gov)

In his opening statement, Sen. Richard Durbin (D-Ill.) said he would judge Supreme Court nominee Elena Kagan by the same standard as other nominees and urged her to follow the example of former Justice Thurgood Marshall.

Despite criticism from Republicans on her choice of Marshall as a judicial role model, Durbin told Kagan not to shy away from the former justice.

“America is a better nation because of the tenacity, integrity and values of Thurgood Marshal,” he said. “And I say thank God.”

Durbin also sharply criticized the Supreme Court’s recent decision in Citizens United v. Federal Election Commission, which he said restricts the freedom of Americans.

“The court needs a person with the ability to build consensus and find common ground,” he added, holding Kagan up as the perfect nominee to do just that.

Tom Coburn (Getty Images)

Sen. Tom Coburn (R-Okla.) complained about “schizophrenia” among recent Supreme Court nominees at the nomination hearing Monday for would-be justice Elena Kagan, urging her to speak honestly about how she would rule on the nation’s highest court.

“My hope is that you’ll really do something great for the Senate and great for the country and set a new standard,” Coburn said.

We will add his full opening statement when we get it.