Lindsey Graham (Gov)
Sen. Lindsey Graham (R-S.C.) praised Supreme Court nominee Elena Kagan for opposing habeus corpus rights for Guantanamo Bay detainees and hiring conservative professors while she was Harvard Law School dean.
Graham said he will question Kagan about her views. But he said she will likely meet “the qualification test” for a Supreme Court justice.
“The fact that that you’ve embraced liberal causes and have grown up in a liberal household is something we need to talk about, but that’s just America,” Graham said. “It’s okay to be liberal. It’s okay to be conservative.”
Senate Judiciary Committee Hearings on Elena Kagan
Opening Statement from U.S. Senator Lindsey Graham (R-South Carolina)
June 28, 2010
Thank you, Mr. Chairman.
Congratulations. I think it will be a good couple of days. I hope you somewhat enjoy it, and I think you will.
Like everyone else, I would like to acknowledge the passing of Senator Byrd. He was a worthy ally and a very good opponent when it came to the Senate. My association with Senator Byrd — during the Gang of 14, I learned a lot about the Constitution from him.
And as all of our colleagues remember, just a few years ago, we had a real — real conflict in the Senate about filibustering judicial nominees. And it was Senator Byrd and a few other senators who came up with the “extraordinary circumstances” test that would say that filibusters should only be used in extraordinary circumstances because elections have consequences. And Senator Byrd was one of the chief authors of the language defining what an “extraordinary circumstance” was.
I just want to acknowledge his passing is going to be loss to the Senate. And the thing that we all need to remember about Senator Byrd is that all of us are choosing to judge him by his complete career. And history will judge him by his complete career, not one moment in time, and that’s probably a good example for all of us to follow when it comes to each other and to nominees.
Now, you are the best example I can think of why hearings should be probative and meaningful. You come with no judicial record, but you’re not the first person to come before the committee without having been a judge. But it does, I think, require us and you to provide us a little insight as to what kind of judge you would be. You have very little private practice, one year as solicitor general, and a lot of my colleagues on this side have talked about some of the positions you’ve taken that I think are a bit disturbing.
But I’d like to acknowledge some of the things you have done as Solicitor General that I thought were very good. You opposed applying habeas rights to Bagram detainees. You supported the idea that a terror suspect could be charged with material support of terrorism under the statute and that was consistent with the law of wars history.
So there are things you have done as solicitor general that I think will merit praise and I will certainly, from my point of view, give you a chance to discuss those.
As dean of Harvard Law School, did you two things. You hired some conservatives, which is a good thing, and you opposed military recruitment, which I thought was inappropriate, but we will have a discussion about what all that really does mean. It’s a good example of what you bring to this hearing — a little of this and a little of that.
Now what do we know? We know you are very smart. You have a strong academic background. You got bipartisan support. The letter from Miguel Estrada is a humbling letter and I’m sure it will be mentioned throughout the hearings, but it says a lot about him. It says a lot about you that he would write that letter.
Ken Starr and Ted Olson have suggested to the committee that you are a qualified nominee. There’s no to doubt in my mind that you are a liberal person. That applies to most of the people on the other side, and I respect them and I respect you. I’m a conservative person. And you would expect a conservative president to nominate a conservative person who did not work in the Clinton Administration.
So the fact that you’ve embraced liberal causes and you have grown up in a liberal household is something we need to talk about, but that’s just America. It’s OK to be liberal. It’s OK to be conservative. But when it comes time to be a judge, you’ve got to make sure you understand the limits that that position places on any agenda, liberal or conservative.
Your judicial hero is an interesting guy. You’re going to have a lot of explaining to do to me about why you picked Judge Barak as your hero because when I read his writings, it’s a bit disturbing about his view of what a judge is supposed to do for society as a whole, but I’m sure you’ll have good answers and I look forward to that discussion.
On the war on terror, you could, in my view, if confirmed, provide the court with some real-world experience about what this country’s facing; about how the law needs to be drafted and crafted in such a way as to recognize the difference between fighting crime and fighting war. So you, in my view, have a potential teaching opportunity, even though you have never been a judge, because you have represented this country as Solicitor General at a time of war.
The one thing I can say without (sic) certainty is I don’t expect your nomination to change the balance of power. After this hearing’s over, I hope American — the American people will understand that elections do matter. What did I expect from President Obama? Just about what I’m getting. And there are a lot of people who are surprised. Well, you shouldn’t have been, if you were listening.
So I look forward to trying to better understand how you will be able to take political activism, association with liberal causes, and park it when it becomes time to be a judge. That, to me, is your challenge. I think most people would consider you qualified because you’ve done a lot in your life worthy of praise.
But it will be incumbent upon you to convince me and others, particularly your fellow citizens, that whatever activities you’ve engaged in politically and whatever advice you’ve given to President Clinton or Justice Marshall, that you understand that you will be your own person, that you will be standing in different shoes, where it will be your decision to make, not trying to channel what they thought. And if at the end of the day, you think more like Justice Marshall than Justice Rehnquist, so be it.
The question is: Can you make sure that you’re not channeling your political agenda, your political leanings when it comes time to render decisions?
At the end of the day, I think the qualification test will be met. Whether or not activism can be parked is up to you. And I look at this confirmation process as a way to recognize that elections have consequences and the Senate has an independent obligation on behalf of the people of this country to put you under scrutiny, firm and fair, respectful and sometimes contentious.
Good luck. Be as candid as possible. And it’s OK to disagree with us up here. Thank you.
Russ Feingold (D-Wis.) (gov)
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.”
Elena Kagan’s opening statement before the Senate Judiciary Committee on her nomination to the Supreme Court.
Excerpts of Elena Kagan’s Opening Statement Before the Senate Judiciary Committee
“Mr. Chairman, the law school I had the good fortune to lead has a kind of motto, spoken each year at graduation. We tell the new graduates that they are ready to enter a profession devoted to “those wise restraints that make us free.” That phrase has always captured for me the way law, and the rule of law, matters. What the rule of law does is nothing less than to secure for each of us what our Constitution calls “the blessings of liberty” – those rights and freedoms, that promise of equality, that have defined this nation since its founding. And what the Supreme Court does is to safeguard the rule of law, through a commitment to even-handedness, principle, and restraint.
…
“The idea is engraved on the very face of the Supreme Court building: Equal Justice Under Law. It means that everyone who comes before the Court – regardless of wealth or power or station – receives the same process and the same protections. What this commands of judges is even-handedness and impartiality. What it promises is nothing less than a fair shake for every American.
…
“[T]he Supreme Court is a wondrous institution. But the time I spent in the other branches of government remind me that it must also be a modest one – properly deferential to the decisions of the American people and their elected representatives. What I most took away from those experiences was simple admiration for the democratic process. That process is often messy and frustrating, but the people of this country have great wisdom, and their representatives work hard to protect their interests. The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people.”
…
“I’ve led a school whose faculty and students examine and discuss and debate every aspect of our law and legal system. And what I’ve learned most is that no one has a monopoly on truth or wisdom. I’ve learned that we make progress by listening to each other, across every apparent political or ideological divide. I’ve learned that we come closest to getting things right when we approach every person and every issue with an open mind. And I’ve learned the value of a habit that Justice Stevens wrote about more than fifty years ago – of ‘understanding before disagreeing.’
I will make no pledges this week other than this one – that if confirmed, I will remember and abide by all these lessons. I will listen hard, to every party before the Court and to each of my colleagues. I will work hard. And I will do my best to consider every case impartially, modestly, with commitment to principle, and in accordance with law.”
Jon Kyl (Gov)
Jon Kyl (R-Ariz.) Statement on Supreme Court nominee Elena Kagan
“One year ago, we sat in this same room to consider the nomination of then-Judge Sonia Sotomayor. Although I could not ultimately support her nomination, I was pleased that she testified that the role of a judge is to put aside any biases or prejudices and impartially apply the law to resolve disputes between parties.
“Judge Sotomayor explicitly rejected the ‘empathy’ standard espoused by President Obama – a standard where ‘legal process alone’ is deemed insufficient to decide the so-called ‘hard cases’; a standard where the ‘critical ingredient is supplied by what is in the judge’s heart.’
“Perhaps because his first nominee failed to defend the judicial philosophy that he was promoting, the President has repackaged it. Now, he says that judges should have ‘a keen understanding of how the law affects the daily lives of the American people. . . . [and] know that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.’
“The clear implication is that, at least in some kind of cases, judges should abandon impartiality and instead engage in results-oriented judging. Indeed, his own press secretary has confirmed the president’s ‘results-oriented’ view.
“Exactly what kind of ‘results’ is the President looking for from his judges? Perhaps he wants judges who will ignore the serious constitutional questions surrounding his domestic legislation. Or, maybe he wants judges who will use the bench to advance ‘progressive’ goals that have been stalled in the political process.
“Whatever the President’s motivation, his view of the role of judges is wrong. Judges are to apply the law impartially, not take on social causes or cut down ‘powerful interests.’ While they may disagree with legislative solutions to problems, it is not their prerogative to ‘fix’ inequities.
“Part of our task is to determine whether Ms. Kagan shares President Obama’s results-oriented philosophy of judging, or, instead is committed to impartiality.
“This may be a more difficult task with Ms. Kagan than with other Supreme Court nominees who have come before this Committee, most of whom have had substantial judicial records to evaluate. For instance, Judge Sotomayor issued 15,000 opinions, in a decade and a half of district and circuit court service. Ms. Kagan has never served on any bench.
“Indeed, except for a brief two-year stint in private practice and one year as Solicitor General, Ms. Kagan’s entire career has been divided between academia and policy positions in the Clinton administration. Given this lack of experience practicing law, I was surprised that the American Bar Association awarded her a ‘well qualified’ rating – especially since the ABA’s own criteria for a judicial nominee call for, among other things, ‘at least twelve years’ experience in the practice of law.’
“Not only is Ms. Kagan’s background unusual for a Supreme Court nominee, it is not clear how it demonstrates that she has, in the President’s words, ‘a keen understanding of how the law affects the daily lives of the American people.’ One recent article noted that ‘[Ms.] Kagan’s experience draws from a world whose signposts are distant from most Americans: Manhattan’s upper West side, Princeton University, Harvard Law School and the upper reaches of the Democratic legal establishment.’
“Her career in academia tells us relatively little about her views on legal issues. In 14 years as a professor, she published only nine articles, two of which were book reviews. And her tenure in the academy was marred, in my view, by her decision to punish the military, and would be recruits, for a policy – ‘don’t’ ask, don’t tell’ and the Solomon amendment – that was enacted by members of Congress and signed into law by President Clinton.
“Despite this relatively thin ‘paper-trail,’ there are warning signs that she may be exactly the results-oriented justice President Obama is looking for. Consider, for example, the judges that Ms. Kagan says she most admires.
“Ms. Kagan has called Israeli Supreme Court Justice Aharon Barak her ‘judicial hero.’ Justice Barak is widely acknowledged as someone ‘who took an activist approach to judging.’
“One respected judge, Richard Posner, described Barak’s tenure on the Israeli Supreme Court as ‘creat[ing] . . . a degree of judicial power undreamed of even by our most aggressive Supreme Court justices.’
“Ms. Kagan identified Thurgood Marshall as another of her legal ‘heroes.’ Justice Marshall is a historic figure in many respects, and it is not surprising that, as one of his clerks, she held him in the highest regard. Justice Marshall’s judicial philosophy, however, was not what I would consider mainstream. As he once explained: ‘You do what you think is right and let the law catch up.’ He might be the epitome of a results-oriented judge.
“And, again, Ms. Kagan appears to enthusiastically embrace Justice Marshall’s judicial philosophy, calling it ‘a thing of glory.’ In 2003, Ms. Kagan wrote a tribute to Justice Marshall in which she said that, in his view, ‘It was the role of the courts, in interpreting the Constitution, to protect the people who went unprotected by every other organ of government – to safeguard the interests of people who had no other champion. The Court existed primarily to fulfill this mission.’ And later, when she was working in the Clinton Administration, she encouraged a colleague working on a speech about Justice Marshall to emphasize his ‘unshakable determination to protect the underdog – the people whom no one else will protect.’ This sounds a lot like what President Obama is saying now.
“And Ms. Kagan’s work as a Supreme Court clerk for Justice Marshall contains evidence that she shares his vision of the Constitution. In many of her memos to Justice Marshall, Ms. Kagan made recommendations concerning the disposition of cases, which appear to be based largely on her own liberal policy preferences.
“For example, despite her view that one lower court decision was ‘ludicrous’ and lacked a legal basis, Ms. Kagan nonetheless recommended that Justice Marshall vote to deny further review because, to do otherwise, Ms. Kagan wrote, would likely ‘create some very bad law on abortion and/or prisoners’ rights.’ This kind of naked political judgment appears frequently throughout Ms. Kagan’s work as a judicial clerk.
“In another case, Ms. Kagan said that the Supreme Court should take the case because ‘it’s even possible that the good guys might win on this issue.’ I’m concerned about her characterization of one party as the ‘good guys.’ Too often, it sounds to me like Ms. Kagan shares the view of President Obama and Justice Marshall that the Supreme Court exists to advance the agenda of certain classes of litigants.
“Similarly, Ms. Kagan wrote that ‘there is no good reason to place an exclusionary-rule issue before this Court, which will doubtlessly only do something horrible with it.’
“In yet another memo laced with political considerations, Ms. Kagan wrote, ‘I see no reason to let this Court get a crack at this question.’ Ms. Kagan was even more explicit in a handwritten note after reviewing the Government’s response in another case: ‘I continue to believe that they [the facts] did not [support the arrest], but I cannot see anything good coming out of review of this case by this Court.’
“Ms. Kagan explains these recommendations as merely ‘channeling’ Justice Marshall. But the question is whether she has major differences with him and whether she sees anything wrong with taking the same approach. I have seen no evidence that is the case.
“In addition to my general concern about whether Ms. Kagan could decide cases impartially and without bias for or against certain parties, a surprising number of things in her relatively thin body of work raise substantive concerns about her views on federalism issues, free speech, national security, Second Amendment rights, gay marriage, the death penalty, religion, and abortion.
“To take just one example, I’m deeply troubled by her decision as Solicitor General to urge the Supreme Court to review and strike down an Arizona law designed to prevent employers from hiring illegal aliens. The Ninth Circuit unanimously upheld the law because federal immigration law explicitly allows states to sanction employers through their business licensing regimes. I think there are legitimate questions about whether the brief authorized by Ms. Kagan – which flies in the face of the plain language of the law and urges the Supreme Court to strike these enforcement provisions down—was motivated by political influence at the White House and within the Department of Justice.
“In conclusion, there is ample reason for members of this committee to carefully scrutinize this nominee – scrutiny which she invited in her now famous Chicago Law Review article 1995.
Because she has no judicial record on which we can determine whether she is a ‘results-oriented’ nominee or would approach each case as a neutral arbiter, the burden is on the nominee to show that her record demonstrates that she can be a fair and impartial justice rather than one who would have an outcome-based approach.”
Dianne Feinstein (D-Calif.) (gov)
In her opening statement before the Senate Judiciary Committee, Dianne Feinstein (D-Calif.) welcomed Elena Kagan as an “imminently confirmable” Supreme Court nominee who would defend the role of precedent on the Court.
Feinstein referenced the extensive search over the past weeks by critics to find flaws in the nominee’s record — a search that unearthed little controversy. Feinstein said the biggest hurdle for Kagan will be her lack of experience as a judge but expressed little worry over the issue.
“I find it refreshing,” said Feinstein, who listed other Supreme Court justices without judging experience.
Charles Grassley (Gov)
Sen. Charles Grassley (R-Iowa) said at the nomination hearing Monday for Supreme Court nominee Elena Kagan that he will be asking whether the would-be justice would embrace judicial activism.
“You’ve … praised jurists who believe that the role of a judge is to ‘do what you think is right and let the law catch up’ and ‘bridge the gap between law and society,’ ” Grassley said. “To me, this kind of judicial philosophy endorses judicial activism, not judicial restraint.”
Full statement embedded below.
Prepared Statement of Senator Chuck Grassley, Senate Committee on the Judiciary
Hearing for Solicitor General Elena Kagan to be an Associate Justice of the Supreme Court of the United States
Monday, June 28, 2010
Solicitor General Kagan, congratulations on your nomination to be an Associate Justice on the Supreme Court of the United States. This is an extremely important appointment, a real honor. I also welcome your family and friends. I’m sure they’re proud of your nomination. I’m glad they’re here to support you throughout your confirmation.
I’m committed to ensuring that this process is fair and respectful, but also thorough. The Constitution tasks the Senate with conducting a comprehensive review of the nominee’s record and qualifications. You’ve been nominated to a lifetime position on the Supreme Court. Consequently, the Senate has a tremendous responsibility to ensure that you truly understand the proper role of a Justice and the Supreme Court in our system of government. We want to ensure that, if confirmed, you’ll be true to the Constitution and laws as written.
We had a nice meeting in my office a few weeks ago. You have an accomplished academic and policy background. You excelled at Princeton University and Harvard Law School. You went onto be an Oxford Scholar. You clerked on the D.C. Circuit Court and the United States Supreme Court. You were a law professor at the University of Chicago Law School, as well as Dean of Harvard Law School. You were a lawyer here on the Judiciary Committee, and then with the Clinton Administration. You’re now the United States Solicitor General.
What is lacking from your background is any experience on a state or federal court, or much experience as a practicing lawyer. We don’t have any substantive evidence to demonstrate your ability to transition from a legal scholar and political operative to a fair and impartial jurist. We’ll need to acquire that evidence through your writings and the positions you’ve taken over the years, as well as your hearing testimony. I hope that you’ll answer our questions in a candid and forthright manner.
Our goal is not to have you commit to ruling in a certain way or for a particular party. Our goal is to see if you are capable of exercising judicial restraint. We want to know that you’ll exercise the preeminent responsibilities of a Justice by adhering to the law and not to the latest opinion polls. The policy choices need to be reserved for Congress.
It’s our duty to confirm a nominee who has superior intellectual abilities. But more importantly, it’s our duty to confirm a nominee who won’t come with a results-oriented philosophy or an agenda to impose his or her personal politics, feelings or preferences from the bench. It’s our duty to confirm a Supreme Court nominee who will faithfully interpret the law and Constitution without personal bias.
The fact that you haven’t been a judge is not dispositive. But because you don’t have that experience, it’s even more critical that we are persuaded that you have the proper judicial philosophy and will practice it once confirmed. We must be convinced that you have the most important qualification of a Supreme Court Justice. That qualification is the ability to set aside your personal feelings and political beliefs so you can administer equal justice for all in a dispassionate way.
Your relatively thin record clearly shows that you’ve been a political lawyer. Your papers from the Clinton Library have been described as showing “a flair for the political” and a “flair for political tactics.” You’ve been described as having “finely tuned . . . political antennae” and “a political heart.”
You were involved in a number of high profile, hot-button issues during the Clinton Administration, including gun rights, welfare reform, abortion, and the Whitewater and Paula Jones controversies. A review of the materials produced by the Clinton Library shows that you forcefully promoted liberal positions and offered analyses and recommendations that often were more political than legal in nature.
Not only that, your Marshall memos indicate a liberal and seemingly outcome-based approach to your legal analysis. More to the point, you have admitted that your upbringing steeped you in deeply held liberal principles. We should know whether, as you’ve said, you have “retained them fairly intact to this date.”
A judge needs to be an independent arbiter, not an advocate or rubberstamp for a political agenda. This point is absolutely crucial for Supreme Court Justices, since they aren’t as constrained to follow precedent to the same extent as judges on the lower courts. If you are confirmed to be an Associate Justice, you’ll have the final say on the law.
You’ve been a prominent member of President Obama’s team as Solicitor General. In nominating you to be an Associate Justice, President Obama clearly believes you measure up to his judicial “empathy” standard – a judge’s ability to “empathize” with certain groups over others.
Indeed, President Obama said that you credited your “hero” Justice Marshall with “reminding [you] that, . . . ‘behind the law there are stories – stories of people’s lives as shaped by the law, stories of people’s lives as might be changed by the law . . . .’”
This “empathy” standard has been soundly rejected because it endorses the application of personal politics, feelings and preferences when judges decide cases. It encourages judges to usurp the functions held by the executive and legislative branches of government. A judge, and particularly a Supreme Court Justice, must unequivocally reject that standard. It does not comport with the proper role of a judge or an appropriate judicial method.
We all know that’s not what our great American tradition envisioned for the role of the judiciary. Rather, the Constitution requires that judges be free from personal politics, feelings and preferences. Judges and Justices are supposed to check their biases, personal preferences and politics at the door of the courthouse, so they can administer justice in an evenhanded manner. Our constitutional system of checks and balances prohibits Justices from implementing their political and social agendas through the judicial process.
You now have the burden of showing us that, despite your record as a political lawyer – rather than as a sitting judge or practitioner – you’ll apply the law impartially and not be a rubberstamp for the President’s agenda. A Supreme Court Justice shouldn’t be a member of someone’s team working to achieve a preferred policy result on the bench.
We’ll want to explore your views on whether and how a judge should use his or her background and experiences when deciding cases. We’ll want to ask you about your ability to decide cases in an impartial manner, in strict accordance with the law and Constitution, without bias or prejudice.
I’ll be asking you about your judicial philosophy, and whether you will allow biases and personal preferences to dictate your judicial method. You once wrote that it “is not necessarily wrong or invalid” for judges to “try to mold and steer the law in order to promote certain ethical values and achieve certain social ends.” You’ve also praised jurists who believe that the role of a judge is to “do what you think is right and let the law catch up” and “bridge the gap between law and society.” To me, this kind of judicial philosophy endorses judicial activism, not judicial restraint.
I want to be sure that your judicial philosophy rejects legislating from the bench. I want to know that you’ll be able to exercise judicial restraint and resist the temptation to “mold and steer” the law and the Constitution to satisfy your fiercely-held beliefs and preferences. I want to be assured that your judging will be anchored in the Constitution, rather than in pursuit of a personal and political agenda from the bench.
Again, I’m committed to giving you a fair, respectful, but also deliberative process. You don’t have a judicial record on a state or federal bench that evidences your ability to be an impartial jurist. So I hope that you’ll be forthcoming in your responses to our questions about your judicial philosophy and positions on Constitutional issues. You urged the Judiciary Committee to delve more deeply into a nominee’s record so that the Supreme Court confirmation process doesn’t turn into a “vapid and hollow charade.” I hope you’ll live up to your own standard so we can make an informed decision. I look forward to hearing your testimony and answers to our questions.
Orrin Hatch (Gov)
Sen. Orrin Hatch (R-Utah) said at the nomination hearing Monday for Supreme Court nominee Elena Kagan that the “most important quality for judicial service is the nominee’s judicial philosophy.”
“Will the Constitution control her or will she try to control the Constitution?” Hatch asked.
He added: “The Senate and the American people need to know what kind of justice Ms. Kagan will be.”
The full statement is embedded below.
WASHINGTON – U.S. Senator Orrin Hatch (R-Utah) delivered the following remarks today before the Senate Judiciary Committee on the nomination of Elena Kagan to the Supreme Court:
“Thank you, Mr. Chairman. I want to welcome you back to the Judiciary Committee, Ms. Kagan. Something tells me this is likely your last confirmation hearing. As America’s founders designed it, the Senate’s role of advice and consent is a check on the President’s power to appoint. Fulfilling that role requires us to evaluate a nominee’s qualifications for the particular position to which she has been nominated. Qualifications for judicial service include both legal experience and judicial philosophy. While legal experience summarizes the past, judicial philosophy describes how a nominee will approach judging in the future. My primary goal in this confirmation process is to get the best picture I can of Ms. Kagan’s judicial philosophy, primarily from her record but also from this hearing. I have to make my decision whether to support her nomination on the basis of evidence, not blind faith.
“I have never considered the lack of judicial experience to be an automatic disqualifier for a judicial nominee. Approximately one-third of the 111 men and women who have served on the Supreme Court had no previous judicial experience. What they did have, however, was an average of more than 20 years of private practice experience. In other words, Supreme Court nominees have had experience behind the bench as a judge, before the bench as a lawyer, or both.
“Ms. Kagan worked for two years in a law firm, the rest of her career in academia and politics. As the Washington Post described it, she brings experience ‘in the political circus that often defines Washington.’ One of my Democratic colleagues on this committee recently said that Ms. Kagan’s strongest qualifications for the Supreme Court are her experience crafting policy and her ability to build consensus. The value of such experience depends on whether you view the Supreme Court as a political circus or view its role as crafting policy.
“I believe that the most important qualification for judicial service is a nominee’s judicial philosophy, or her approach to interpreting and applying the law to decide cases. This is what judges do, but different judges do it in radically different ways. Our liberty, however, requires limits on government, and that includes limits on judges. Chief Justice Marshall wrote in Marbury v. Madison that America’s founders intended the Constitution to govern the judicial branch as much as the legislative branch. Unfortunately, many judges today do not see it that way but believe that they may govern the Constitution.
“The Senate, and the American people, need to know which kind of Justice Ms. Kagan would be. Will the Constitution control her or will she try to control the Constitution? Does she believe that the words of the Constitution and statutes can be separated from their meaning, so that the people and their elected representatives put words on the page but judges may determine what those words mean? Does she believe it is valid for judges to mold and steer the law to achieve certain social ends? Does she believe that a judge’s personal experiences and values may be the most important element in her decisions? Does she believe that courts exist to protect certain interests? Does she believe that judges may control the Constitution by changing its meaning? Does she believe that judges may change the meaning of statutes in order to meet what judges believe are new social objectives?
“These are just some of the questions that go to the heart of a nominee’s judicial philosophy. I want to clarify, as best I can, what kind of Justice Ms. Kagan would be. To do that, I have to examine her entire record. As in previous hearings, there will no doubt be some tension during this hearing between what Senators want to know and what Ms. Kagan is willing to tell us. Unlike previous hearings, however, Ms. Kagan has already outlined quite clearly what she believes Supreme Court nominees should be willing to talk about in a hearing like this. Without this information, Ms. Kagan has written, the Senate ‘becomes incapable of either properly evaluating nominees or appropriately educating the public.’
“Ms. Kagan identified the critical inquiry about a Supreme Court nominee as ‘the votes she would cast, the perspective she would add, and the direction in which she would move the institution….But the bottom-line issue in the appointments process must concern the kinds of judicial decisions that will serve the country and, correlatively, the effect the nominee will have on the Court’s decisions. If that is too results oriented…so be it.’
“Ms. Kagan outlined that approach, which she argued is necessary for Supreme Court confirmation hearings to be more than vacuity and farce, in a law journal article when she was a tenured law professor after working for this committee on a Supreme Court confirmation. She was not a student writing a blog about some hypothetical topic that she knew nothing about. I am confident that Senators will give Ms. Kagan many opportunities in the next few days to provide the information and insight that she has argued is critical for the Senate properly to make a decision on her confirmation.
“This is a critical decision, and it is about more than just one person. Our decision will affect liberty itself. George Washington said this in his farewell address: ‘The basis of our political systems is the right of the people to make and alter their constitutions of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.’ The people’s right to make and alter the Constitution means nothing if the people choose the Constitution’s words but judges choose what those words mean. A judge with that much power would effectively take an oath to support and defend not the Constitution, but herself. I hope that this hearing will help me further understand what kind of Justice Ms. Kagan would be.
“Thank you, Mr. Chairman.”
Herb Kohl (D-Wis.) (gov)
Herb Kohl (D-Wis.) emphasized the importance of a “substantive and candid dialogue” at the confirmation hearing for Supreme Court nominee Elena Kagan Monday.
The senator expressed confidence in the nominee, but also said he would be looking at Kagan with a mindful eye on her judicial temperament, quoting Oliver Wendell Homes as saying, “‘Presidents come and go, but the Supreme Court goes on forever.’”
“We don’t have a right to know in advance how you will decide cases, but we do have a right to understand your judicial philosophy and what you think about fundamental issues that will come before the court,” he said.
In addition, Kohl impressed upon Kagan the importance of seeing the human stories behind the law.
“We want a nominee with a sense of compassion,” he said. “It is meant to remind us that the law is more than a mental exercise or an intellectual feast. It is about the real problems that will shape the fabric of American life for generations to come.
The full statement is embedded below.
WASHINGTON – Today, U.S. Senator Herb Kohl gave his opening statement in the confirmation hearings of U.S. Supreme Court nominee Solicitor General Elena Kagan. Kohl is second in seniority among Democrats on the Senate Judiciary Committee, which is responsible for conducting the hearings as the Senate engages in its Constitutional role to “advise and consent” on Supreme Court nominations. Please find the text of the statement below.
Good morning Solicitor General Kagan. We welcome you today to the Committee and extend our congratulations to you on your nomination.
If confirmed, you will bring to the court an impeccable resume and a formidable track record of accomplishments. And, you will bring a new perspective to the bench, as each new justice does, based on your life and your career. You come before us today not from the halls of our judicial monastery, but with the insight of a scholar and a teacher, and the political, policy and legal acumen of a White House aide, law school dean and the Solicitor General of the United States.
Your encounters with the law– from its technical intricacies to its emotional controversies – have formed the lens through which you will judge the dilemmas of our democracy and the constitutional questions we face. At this hearing, we will try to learn from you how that lens will affect your judgment on the Court.
Should you be confirmed, your decisions will impact our pocketbooks and our livelihoods, and determine the scope of our most cherished rights. From the right to privacy to the right to equal education, employment and pay; From the right to an attorney and a fair trial for the accused to the right to speak and worship freely.
In these difficult economic times, in the wake of what could be the most horrific environmental crisis in our nation’s history, and as we continue our fight against terrorism, we are mindful of the great influence you will have on the issues and cases that wash up on the shores of our courts. The questions you will confront are not only concepts for lawyers and courts to contemplate. Behind the volumes of legal briefs are real people with real problems. And beyond the individual parties to each case will stand the rest of us who will feel either the brunt or the bounty of your decisions.
We hear the over-used platitudes from every nominee, that he or she will apply the facts to the law and faithfully follow the Constitution. But, deciding Supreme Court cases is not merely a mechanical application of the law. There will be few easy decisions and many cases will be decided by narrow margins.
You will not merely be calling balls and strikes. If that was the case then Supreme Court nominations and our hearings would not be the high stakes events they are today. But all of these things do matter and we care deeply about the Supreme Court precisely because it rules on only the toughest and most challenging problems. We can all agree that your decisions will impact society long after you have left the court. Justice Oliver Wendell Holmes put it plainly, “Presidents come and go, but the Supreme Court goes on forever.”
That is why it is so important for us to know who you are, Solicitor General Kagan – what is in your heart and what is in your mind. We can gain some insight from your work for President Clinton and Justice Thurgood Marshall. But we have less evidence about what sort of judge you will be than on any nominee in recent memory. Your judicial philosophy is almost invisible to us.
We don’t have a right to know in advance how you will decide cases, but we do have a right to understand your judicial philosophy and what you think about fundamental issues that will come before the court. As you said in your own critique of these hearings in 1995, it is an “embarrassment” that Senators do not insist that a nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues.
The President has his vetting process and we in the Senate have our vetting process. But this hearing is the only opportunity for the American public to learn who you are. They deserve to learn about your views and motivations before you don the black robes of a Justice for a lifetime appointment.
For each Supreme Court nomination in which I have participated, I have put each nominee to a test of judicial excellence and your nomination will be no different.
First, a nominee must demonstrate that she has the competence, character, integrity, and temperament necessary for any judge or justice. And that she will have an open mind—not only willing to hear cases with an open mind, but also willing to decide cases with an open mind.
I also look for a nominee to have the sense of values and judicial philosophy that are within the mainstream of legal thought in our country. No one, including the President, has the right to require ideological purity from a member of the Supreme Court. But we do have a right to require that the nominee accept both the basic principles of the Constitution and its core values implanted in society.
Finally, we want a nominee with a sense of compassion. Compassion does not mean bias or lack of impartiality. It is meant to remind us that the law is more than a mental exercise or an intellectual feast. It is about the real problems that will shape the fabric of American life for generations to come.
The great dilemmas of our democracy invite us to engage in a robust debate and my hope is that we can engage in a substantive and candid dialogue that will benefit not only those here on the Committee, but also the public. The American people want and deserve a process that is more than what you characterized as a “vapid and hollow charade” and which so frustrated you 15 years ago.
In a tribute to Justice Marshall, you said that the stories he told to his law clerks served the purpose of reminding you that “behind the law there are stories – stories of people’s lives as shaped by the law, [and] stories of people’s lives as might be changed by the law.” We are gathered here today to hear your stories – how your life has been shaped by the law and how our lives might be changed by the law when you are on the Court.
Jeff Sessions (photo by Ryan J. Reilly / Main Justice)
Opening Statement of Sen. Sessions for the Nomination Hearing of Elena Kagan
WASHINGTON-U.S. Senator Jeff Sessions (R-AL), Ranking Member of the Senate Judiciary Committee, delivered the following opening statement today at the nomination hearing of Elena Kagan to be an Associate Justice of the U.S. Supreme Court:
“Ms. Kagan, let me join Chairman Leahy in welcoming you here today. This nomination is certainly a proud day for you, your family, and your friends-and rightfully so. I enjoyed very much our meeting a few weeks ago, and appreciated the chance to talk with you.
Mr. Chairman, thank you for your work on this nomination. As I have pledged, Republicans are committed to conducting this hearing in a thoughtful and respectful manner. It is not a coronation, but a confirmation. Serious and substantive questions will be asked. Ms. Kagan will be given ample opportunity to respond.
Ms. Kagan certainly has numerous talents and good qualities, but there are serious concerns about this nomination.
Ms. Kagan has less real legal experience of any nominee in at least fifty years. It’s not just that she has never been a judge.
She has barely practiced law, and not with the intensity and duration from which real understanding occurs.
Ms. Kagan has never tried a case before a jury.
She argued her first appellate case just nine months ago. While academia certainly has value, there is no substitute for being in the harness of the law, handling real cases over a period of years.
What Ms. Kagan’s public record does reveal, however, is a more extensive background in policy and politics, mixed with law.
Ms. Kagan’s college thesis on socialism in New York seems to bemoan socialism’s demise there.
In her master’s thesis, she affirmed the activist tendencies of the Earl Warren Court, but complained that they could have done a better job of justifying their activism.
President Obama’s nominee started her political career in earnest as a staffer on the presidential campaign of Michael Dukakis.
She took leave from teaching at law school to work for this committee under then-Chairman Joe Biden to help secure the confirmation of Ruth Bader Ginsburg-a former chief counsel for the ACLU and now one of the most activist justices on the Supreme Court.
Professor Kagan left teaching law to spend five years at the center of politics, working in the Clinton White House, doing-as she describes it-”mostly policy work.”
Policy is quite different than the intense legal work involved, for example, in the Office of Legal Counsel and other divisions of the Department of Justice.
During her White House years, the nominee was the central figure in the Clinton-Gore effort to restrict gun rights-and, as the dramatic 5-4 decision today in McDonald shows, the personal right of every American to own a gun hangs by a single vote.
Ms. Kagan was also the point person for the Clinton Administration’s efforts to block Congressional restrictions on partial-birth abortions.
Indeed, documents show she was perhaps the key person who convinced President Clinton to change his mind, from supporting to opposing legislation that would have banned that horrible procedure.
During her time as Dean of Harvard, Ms. Kagan reversed Harvard’s existing policy and kicked the military out of the recruiting office in violation of federal law. Her actions punished the military and demeaned our soldiers as they were courageously fighting two wars overseas.
As someone who feels the burden of sending such young men and women into harm’s way-and who spent much time drafting and redrafting legislation to ensure military recruiters were treated fairly on campus-I can never take this issue lightly.
Dean Kagan also joined with three other law school deans to write a letter in opposition to Senator Graham’s legislation establishing procedures for determining who was an “enemy combatant” in the War on Terror. She compared this legislation to the “fundamentally lawless” actions of “dictatorships.”
Most recently, the nominee served as Solicitor General for a little over a year.
But, her short tenure has not been without controversy.
In her first appellate argument, Ms. Kagan told the Court that the speech and press guarantees in the First Amendment would allow the federal government to ban the publication of pamphlets discussing political issues before an election.
I would remind my colleagues that the American Revolution was-in no small part-spurred on by just such a political pamphlet, Thomas Paine’s “Common Sense.” To suggest that the government now has the power to suppress that kind of speech is breathtaking.
Also as Solicitor General, Ms. Kagan approved the filing of a brief before the Supreme Court asking that it strike down provisions of the Legal Arizona Worker’s Act, which suspends or revokes business licenses of corporations which knowingly hiring illegal immigrants, even though Federal law expressly prohibits such hiring.
She did this even after the liberal 9th Circuit had upheld the law.
This is an important legal issue that the Court will resolve during its next term.
And, despite promises to this committee that she would “vigorously” defend the Congress’ “Don’t Ask, Don’t Tell” law if it were challenged in court, the actions she has taken as Solicitor General appear to have deliberately and unnecessarily put that law in jeopardy.
Importantly, throughout her career, Ms. Kagan has associated herself with well-known activist judges who use their power to redefine the meaning of the words of our Constitution and laws in ways that, not surprisingly, have the result of advancing the judge’s preferred social policies for the country.
She clerked for Judge Mikva and Justice Marshall, each a well-known liberal activist judge. And she has called Israeli Judge Aharon Barak-who has been described as the most activist judge in the world-her hero.
These judges don’t deny activism; they advocate it. And they openly oppose the idea of a judge as a neutral umpire.
Few would dispute that this record tells us much about the nominee. In many respects, Ms. Kagan’s career has been consumed more by politics than law. This worries many Americans.
In the wake of one of the largest expansions of government power in history, many Americans are worried about Washington’s disregard for limits on its power.
Americans know that our exceptional Constitution was written to ensure that our federal government is one of limited, separated powers, and part of a federal-state system, with individual rights reserved to our free people.
But we’ve watched as the president and Congress have purchased ownership shares in banks, nationalized car companies, seized control of the student loan industry, taken over large sectors of our nation’s health care system, and burdened generations of Americans with crippling debt.
This all sounds a lot like the progressive philosophy, which became fashionable among elite intellectuals a century ago-and which is now seeing a revival.
They saw the Constitution as an outdated impediment to their expansive vision for a new social and political order in America.
Even today, President Obama advocates a judicial philosophy that calls on judges to base their decisions on empathy and their “broader vision of what America should be.” He suggests that his nominee shares that view.
Our legal system does not allow such an approach.
Americans want a judge that will be a check on government overreach, not a rubber stamp.
No individual-nominated by a president of either party-should be confirmed as a judge if he or she does not understand that the judge’s role is to fairly settle disputes of law, and not to set policy for the nation.
Broad affirmations of “fidelity to the law” during these hearings will not settle the question. One’s record also speaks loudly. Indeed, it is easy to pledge fidelity to a law when you believe you can change its meaning later if you become a judge.
Ms. Kagan has called previous confirmation hearings “vapid” and “hollow,” and has argued that nominees for a lifetime position owe a greater degree of candor and openness to the committee.
I agree that candor is needed, and I look forward to that kind of exchange this week.
Patrick Leahy (D-Vt.) (photo by Channing Turner / Main Justice)
Opening Statement Of Senator Patrick Leahy (D-Vt.), Chairman, Senate Judiciary Committee
Confirmation Hearing On The Nomination Of Solicitor General Elena Kagan To Be An Associate Justice Of The Supreme Court Of The United States
June 28, 2010
As Prepared
We meet today to consider President Obama’s nomination of Elena Kagan for a lifetime appointment to the Supreme Court of the United States. Just last year, this Committee and the Senate reviewed her record, and a bipartisan majority voted to confirm her to be the Solicitor General, the top lawyer representing the United States before the Supreme Court. With her confirmation, Solicitor General Kagan became the first woman in America’s history to serve in that position, often referred to as the “Tenth Justice.” She was nominated to be Solicitor General while serving as Dean of Harvard Law School, the first woman to hold that position in the school’s 193-year history.
There have been 111 Justices in the Supreme Court of the United States. Only three have been women. If she is confirmed, Solicitor General Kagan will bring the Supreme Court to an historical high-water mark, with three women concurrently serving as Justices. Sandra Day O’Connor, who was the first woman nominated and confirmed to the Supreme Court 29 years ago, resigned in 2006. Just one year ago Justice Ginsburg was the sole woman serving on the Court. Justice Sotomayor, who also made history as the first Hispanic Justice, has been a welcome addition to the Supreme Court. Now we are poised to make more progress.
Elena Kagan earned her place at the top of the legal profession. Her legal qualifications are unassailable. As a student, she excelled at Princeton, Oxford and Harvard Law School. She was a law clerk to the great Supreme Court Justice, Thurgood Marshall; worked in private practice and briefly for then-Senator Biden on this Committee; taught law at two of the Nation’s most respected law schools; counseled President Clinton on a wide variety of issues; served as Dean of Harvard Law School; and is now the Solicitor General of the United States. We are a better country for the fact that the path of excellence Elena Kagan has taken in her career is one now open to both men and women.
The Constitutional Tradition of Forming a More Perfect Union
It was not until 1920, after a long struggle and the ratification of the 19th Amendment to the Constitution, that women were guaranteed the right to vote. This amendment is part of our great tradition to further the Constitution’s purpose of forming a more perfect Union. We inherited this tradition from the Founders, who, in crafting the Constitution did not presume to have answers for every question that might face future Americans. Had they done so, the Constitution that emerged from the political clamor and compromises of the Founders’ time would have been so rigid that it would have bound the hands of later generations from solving the problems of their own time. However, as Chief Justice John Marshall wrote, our Constitution is “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” He and our other great Justices have recognized that the broadly-worded guarantees and powers granted in the Constitution adapt to changing circumstances.
Consequently, our Constitution has withstood the test of time. The genius of our Founders was to establish a Constitution firm enough to enshrine freedom and the rule of law as guiding principles, yet flexible enough to sustain a young Nation that was destined to grow into the greatest, richest and most powerful Nation on earth.
Our country’s historic progress to greater freedom, equality and security for all is an enduring and defining feature of our history. When the Constitution was written, “We the People” did not include African-American slaves or Native Americans but only a narrow band of what were then known as “free Persons.” It took more than four score years and a Civil War that claimed the lives of hundreds of thousands to end the enslavement of African Americans and include as citizens “all persons born or naturalized in the United States.” Through the Civil War amendments that followed, we transformed the Constitution into one that more fully embraced equal rights and human dignity. The country and our democracy were stronger for it. But the job was not complete. It was halfway through the last century that racial discrimination was dealt a blow by the Supreme Court in the modern landmark case of Brown v. Board of Education, Congress passed the Civil Rights Act of 1964 and the Voting Rights Act of 1965, and America began to provide a fuller measure of equality to those who were held back for so long because of the color of their skin.
Our path to a more perfect Union also included the rejection 75 years ago of conservative judicial activism by the Supreme Court and our establishing a social safety net for all Americans. It began with our outlawing child labor and guaranteeing a minimum wage. Through Social Security, Medicare and Medicaid, Congress ensured that growing old no longer means growing poor, and that being older or poor no longer means being without medical care. That progress continues today. All of us are the better for it.
Judicial Philosophy vs. Ideological Litmus Tests
The 100 of us who serve in the United States Senate stand in the shoes of more than 300 million Americans as we discharge our constitutional duty with respect to this nomination. I urge the nominee to engage with this Committee and through these proceedings with the American people in a constitutional conversation about the role of courts and the meaning of our Constitution. We should ask serious questions but in a civil manner befitting the Senate’s tradition.
I am no newcomer to the belief that a nominee’s judicial philosophy is an important factor in his or her confirmation. I intend to ask Solicitor General Kagan about her judicial philosophy. I intend to ask, in her words, about her “understandings of the values embodied in the Constitution and the proper role of judges in giving effect to those values.” That is what I have done through the course of a dozen Supreme Court nominations hearings.
When we discuss the Constitution’s commerce clause or spending power, we are talking about congressional authority to pass laws to ensure protection of our communities from natural and man-made disasters, to encourage clean air and water, to provide health care for all Americans, to ensure safe food and drugs, to protect equal rights, to enforce safe workplaces and to provide a safety net for seniors. This hearing is, accordingly, about the fundamental freedoms of all Americans.
The constitutional discussion I hope we will have is part of our great democracy set in motion by the Founders. Like the Founders, we do not know what legal questions will be before the Supreme Court in the decades to come. No Senator should seek to impose an ideological litmus test or to secure promises of specific outcomes in cases coming before the Supreme Court.
I reject the ideological litmus test that some would apply to Supreme Court nominees. I expect judges to look to the legislative intent of our laws and to consider the consequences of their decisions, to use common sense and to follow the law. In my view a Supreme Court Justice needs to exercise judgment, should appreciate the proper role of the courts in our democracy, and should consider the consequences of decisions on the fundamental purposes of the law and in the lives of Americans.
Understanding how the law affects Americans is important because it reflects an understanding of why the law matters. I expect that Elena Kagan learned that lesson early in her legal career when she clerked for Justice Marshall. Constitutional values that need to be applied and cases often involve competing constitutional values. In the hard cases that come before the Supreme Court in the real world, we want – and need – Justices who have the good sense to appreciate the significance of the facts in the cases in front of them as well the real-world ramifications of their decisions.
I urge Solicitor General Kagan to be open and responsive and to share with us and the American people her judicial philosophy and indicate her judicial independence. I believe that fair-minded people will find her judicial philosophy well within the legal mainstream. I welcome questions to Solicitor General Kagan about judicial independence, but let us be fair. Let us listen to her answers. There is no basis to question her integrity and no one should presume that this intelligent woman, who has excelled during every part of her varied and distinguished career, lacks independence.
It is essential that judicial nominees understand that, as judges, they are not members of an administration. The courts are not subsidiaries of any political party or interest group, and our judges should not be partisans. That is why the Supreme Court’s intervention in the 2000 presidential election in Bush v. Gore was so jarring and wrong. That is why the Supreme Court’s recent decision in Citizens United, in which five conservative Justices rejected the Court’s own precedent, the bipartisan law enacted by Congress, and 100 years of legal developments in order to open the door for massive corporate spending on elections, was such a jolt to the system.
Based on my review of Solicitor General Kagan’s record, I expect that she and I will not always agree. I do not agree with every decision that Justice Stevens has written, but I have great respect for his judgment. I did not always agree with Justice O’Connor or with Justice Souter, but I never regretted my vote in favor of each of their confirmations. I respect their efforts to uphold the Constitution and the rule of law for all Americans. They looked to the express purpose and legislative intent of our laws, respected precedent, and considered the real-world consequences of their decisions.
The American people live in a real world of great challenges. The Supreme Court needs to function in that real world consistent with our Constitution. Vermont did not vote to join the Union until the year the Bill of Rights was ratified. Those of us from the Green Mountain State are protective of our fundamental liberties. Vermonters understand the importance the Constitution, and its amendments, have had in expanding individual liberties over the last 220 years.
I hope that Elena Kagan will demonstrate through this hearing that she will be the kind of independent Justice who will keep faith with these principles and with the words inscribed in Vermont marble over the front doors to the Supreme Court, “Equal Justice Under Law.”
