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.

Sen. Arlen Specter, D-Pa., introduced legislation Tuesday that would make it a federal crime to intimidate or threaten witnesses in state court proceedings, the Philadelphia Inquirer reported.

The legislation would give state witnesses the same legal protections that federal witnesses have.

“It is a violation of state law to intimidate a witness, but making it a federal offense imports a great deal more pressure, more power to the situation,â€� Specter said in a floor statement Tuesday. Here is Specter’s news release about the bill.

Sen. Arlen Specter, D-Pa.

According to Specter, the State Witness Protection Act of 2010 is in response to a Philadelphia Inquirer series that found witness fear to be a factor in virtually every violent-crime prosecution in Philadelphia. The legislation would help protect the integrity of the judicial process, Specter said.

“Unless witnesses can be assured they will be protected, the problem of witness intimidation cannot be expected to go away,� he said.

The bill would allow the FBI and federal prosecutors to investigate and bring charges against people who intimidate witnesses in local court cases and would set tough new penalties for those crimes.

It would impose maximum penalties of up to 20 years for intimidating or harming a witness, up to 30 years for the attempted murder of a witness, and the possibility of the death penalty for the murder of a witness, according to the Inquirer.

According to The Inquirer, Specter’s effort was supported by Philadelphia District Attorney Seth Williams and Barbara Clowden, whose 17-year-old son was killed two days before he was to testify as a witness in an arson trial in 2006. Clowden was profiled in the Inquirer series.

The Inquirer stories documented conviction rates that are among the lowest in the nation and described how thousands of cases collapse after terrified witnesses fail to appear in court.

The legislation is cosponsored by three other Senate Judiciary Committee members: Ted Kaufman, D-Del., Chuck Schumer, D-N.Y. and Amy Klobuchar, D-Minn.

The Senate today approved an amendment to the health care overhaul bill that includes provisions to fight fraud.

Patrick Leahy (Getty Images)

The Senate voted 60-39 on a manager’s amendment from Senate Majority Leader Harry Reid (D-Nev.) that would incorporate elements of the Health Care Fraud Enforcement Act into the health care bill. Sen Ted Kaufman (D-Del.), a Judiciary Committee member, introduced the fraud legislation as a stand-alone bill in October.

Sen. Patrick Leahy (D-Vt.), a co-sponsor of the fraud bill, said in a floor statement yesterday that health care scammers have driven up the cost of medical care. The Judiciary Committee chairman said the manager’s amendment gives prosecutors the resources needed to effectively combat health care fraud.

“These changes will strengthen our ability to crack down on fraud and will ultimately result in significant savings that will make health care more efficient and more affordable,” Leahy said.

Here are some of the key provisions:

– Increased penalties in federal sentencing guidelines.  “Despite the enormous losses in many health care fraud cases, offenders often receive shorter sentences than other white collar criminals,” Leahy said. He added: “By increasing the federal sentencing guidelines for health care fraud offenses, we send a clear message that those who steal from the nation’s health care system will face swift prosecution and substantial punishment.”

– Anti-kickback statute changes. “The manager’s amendment also includes our provision amending the anti-kickback statute to ensure that all claims resulting from illegal kickbacks are considered false claims for the purpose of civil action under the False Claims Act, even when the claims are not submitted directly by the wrongdoers themselves,” Leahy said. “All too often, health care providers secure business by paying illegal kickbacks, which needlessly increases health care risks and costs. This change will help ensure that the government is able to recoup from wrongdoers the losses resulting from these kickbacks.”

– Limited Justice Department subpoena powers for civil rights probes int0 certain medical institutions. “This provision allows the government to more effectively investigate conditions in publicly operated institutions, such as nursing homes, mental health institutions, and residential schools for children with disabilities, where there have been allegations of civil rights violations,” Leahy said.

We reported in October that Assistant Attorney General Tony West urged members of the Senate Judiciary Committee to approve health care fraud legislation.

In May, the Justice and Health and Human Services departments launched the Health Care Fraud Prevention and Enforcement Action Team to fight Medicare and Medicaid fraud.

Two stalled Justice Department nominees are slated for university teaching jobs again early next year,  according to university course schedules for spring 2010.

The teaching jobs give the two nominees a backup plan in case their confirmations continue to be stalled in the Senate.

Office of Legal Counsel nominee Dawn Johnsen, who was nominated Feb. 11, will teach a class at Indiana University’s Maurer School of Law this spring.

Office of Legal Policy nominee Christopher Schroeder, who was tapped June 4, will teach two courses, along with Sen. Ted Kaufman (D-Del.), for the Duke University School of Law in Washington this spring.

Dawn Johnsen (Indiana University)

Johnsen’s constitutional law seminar is titled, “Congress, the Presidency and the Courts.” The OLC nominee’s course is slated to tackle such topics as “permissible forms of congressional oversight of the Executive, including limitations on the appointment and removal of executive branch officers” and “when may the president assert executive privilege and refuse to comply with requests for information from Congress or the courts,” according to the Indiana University law school’s Web site. Read the full course description here.

The OLC nominee taught a a seminar titled “Sexuality, Reproduction and the Law� this fall, while commuting between Washington and Bloomington, Ind.

Several Senate Republicans, joined by Democrats Arlen Specter (Pa.) and Ben Nelson (Neb.), have criticized Johnsen because of her vocal opposition to the Bush administration’s national security policies and her past work for the group formerly known as the National Abortion and Reproductive Rights Action League. She was approved by the Senate Judiciary Committee March 19 by a 11-7 vote. Specter, who was a Republican at the time, abstained from the vote. Nelson is not on the committee.

Christopher Schroeder (Duke)

As for Schroeder, one of his courses requires students to participate in an externship in D.C. about federal policy making. The other class requires students to write about their federal policy making externship.

The externship course is designed for “students who are interested in public policy, public service, and careers in the public sector an opportunity to study federal policymaking firsthand,” according to the Duke law school Web site. The externship course description is here. The paper class description is here.

Schroeder also taught the externship course with Kaufman in spring 2009. Schroeder did not teach a course this fall.

The Senate Judiciary panel, of which Kaufman is a member,  approved Schroeder’s nomination by voice vote on July 28. Committee Chairman Patrick Leahy (D-Vt.), complained on Nov. 17 about the delay in Senate action on a number of nominations, including that of Schroeder, noting in a press release,  “I can only imagine that the reason his confirmation is being delayed is part of the partisan effort to slow progress on judicial nominees.”

Assistant Attorney General Tony West (Steve Bagley/Main Justice)

The Department of Justice and Congress are working together to beef up the government’s ability to fight health care fraud.

Assistant Attorney General Tony West told the Senate Judiciary Committee Wednesday the DOJ needs Congress’s help. “We cannot combat this fraud alone,” said West, who has headed the DOJ’s Civil Division for eight months.

Good timing. Later Wednesday, Sen. Ted Kaufman (D-Del.) introduced the Health Care Fraud Enforcement Act to help the Justice Department out.

The act would make a few key reforms, Kaufman said, including changing sentencing guidelines for criminals convicted of health care fraud, make punishments “commensurate with costs” of the fraud, and increase whistleblower payments.

According to a news release from Kaufman’s office, the bill would increase the sentences for health care fraud convictions, redefine the definition of what constitutes a health care fraud offense to include drug marketing, kickback and ERISA crimes, increase whistleblower claims, create a mental state requirement for trying health care fraud offenses and devoting $20 million annually from 2011 to 2016 in federal funding to increase Medicare fraud investigations and prosecutions.

“We have seen an increasing number of sentences of fines for where there is really serious egregious conduct. Fines have just added to the cost of doing business,” Sen. Arlen Specter (D-Pa.) said at the Senate Judiciary Committee hearing this morning.

On the Senate floor Tuesday, Kaufman spoke about the bill, the Health Care Fraud Enforcement Act of 2009. “We must also ensure law enforcement has the tools it needs,” Kaufman said.

West said that “fighting Medicare and Medicaid fraud has become a “Cabinet-level priority,” with the DOJ and HHS’s combined efforts.

The two agencies in May announced the Health Care Fraud Prevention and Enforcement Action Team (HEAT) to pursue Medicare and Medicaid fraud.  ”If we can put these people in prison, we will do that,” West said. “That’s a commitment the department has made.”

At the hearing, Sen. John Cornyn (R-Texas) said he wanted to see the DOJ’s Civil and Criminal Divisions beef up their staff to deal with health care fraud. “The bad guys outnumber the good guys,” Cornyn said. “I don’t know how we can expect [The Centers for Medicare and Medicaid Services] to do a better job, when out of the 4.4 million claims you get every day you can only review 3 percent of them. I’m not sure we are ever going to have enough good guys to outnumber the bad guys in this.”

Sen. Chuck Grassley (R-Iowa) questioned West on the 1,040 pending qui tam lawsuits waiting for the DOJ to sign on. “I find it troubling that some cases are lingering for 36 months,” Grassley said of the whistle blower suits. “Does the Justice Department have a plan to clear this backlog in a timely manner? And if so, what is it?”

Those cases, West said, are being “actively investigated.”

Senate Democrats introduced legislation Thursday that would establish the same sentencing guidelines for powder cocaine and crack offenses.

The Fair Sentencing Act, sponsored by Senate Assistant Majority Leader Dick Durbin (D-Ill.) and nine other Democrats, would end the 100-to-1 ratio between crack and powder cocaine penalties enacted in the 1980s. The bill would also trigger a five-year mandatory minimum sentence for the possession of 500 grams of either of the substances.

The decades-old law gives the same five-year mandatory minimum sentence for the possession of five grams of crack cocaine as it does for the possession of 500 grams of powder cocaine. Democrats have said the law tends to disproportionately harm blacks, because crack is generally used in poorer urban communities.

“The sentencing disparity between crack and powder cocaine has contributed to the imprisonment of African Americans at six times the rate of whites and to the United States’ position as the world’s leader in incarcerations,” Durbin said in a statement. “Congress has talked about addressing this injustice for long enough; it’s time for us to act.â€�

The cosponsors of the bill are Judiciary Committee Chairman Patrick Leahy (D-Vt.), Judiciary crime and drugs subcommittee Chairman Arlen Specter (D-Pa.), Judiciary panel members Sens. Russ Feingold (D-Wisc.), Ben Cardin (D-Md.), Sheldon Whitehouse (D-R.I.), Ted Kaufman (D-Del.) and Al Franken (D-Min.) Sens. John Kerry (D-Mass.) and Chris Dodd (D-Conn.) are also cosponsors.

The House Judiciary Committee approved its version of the legislation in July. Unlike the Senate bill, the House legislation eliminates mandatory minimum sentences for cocaine and crack offenses.

The Justice Department supports Congress’s efforts to eliminate the differences between crack and powder cocaine sentencing. Assistant Attorney General Lanny Breuer said at a House hearing in May that the current sentencing policies are “hard to justify.�

Assistant Majority Leader Sen. Dick Durbin has been one of the Senate’s most passionate voices against Bush-era detention policies. But don’t expet the Illinois Democrat to use his chairmanship of a newly revived Senate Judiciary human rights subcommittee as a partisan bully pulpit.

Durbin (in background) gave up the crime subcommittee to Specter

Instead, Durbin said he will work with Sen. Tom Coburn (R-Okla.) to find common ground on an agenda. He’s taking the gavel of the subcommittee for a second time, after giving up chairmanship of the plum Judiciary crime subcommittee to party-switching Sen. Arlen Specter (D-Pa.)

The human rights panel plans to address child soldiers, genocide, sexual violence and human trafficking — all concerns Coburn shares as well. In particular, conservatives and liberals have come together to fight international human trafficking, including the forced prostitution of women.

“While we had some legislative success, far more needs to be done,� Durbin said in a statement last month after he received the subcommittee gavel again. “We will continue to work on these and other issues as we try to ensure that America remains committed to human rights both at home and abroad.�

Coburn said he is please the subcommittee has been revived.

“We have a lot of issues we need to look at it,� Coburn said in an interview.

Tom Malinowski, Washington director for the Human Rights Watch which worked with the panel in the past, said he hopes the reestablished subcommittee will continue the work it did in the last Congress that led to the enactment of the Genocide Accountability Act and the Child Soldiers Accountability Act, which targeted world leaders who engaged in severe human rights abuses.

He said that while the subcommittee tackled many weighty issues, it avoided some topics that could have caused severe divisions between subcommittee Democrats and Republicans, such as the Bush administration’s policies on indefinite prisoner detentions, which Durbin openly criticized.

“Durbin made a point of choosing issues that Sen. Coburn was interested in working on,� Malinowski said.

Helping the senators to develop an agenda will be majority chief counsel Joseph Zogby and minority chief counsel Brooke Bacak. Zogby was previously the chief counsel for the human rights and the law subcommittee and then served the brief stint as Durbin’s chief counsel on crime and drugs subcommittee. Mary Harned previously held the minority post.

The Justice Department will also continue to work with the subcommittee. During the 110th Congress, members of the Civil and Criminal divisions often testified before the subcommittee.

“We look forward to working with the subcommittee on human rights and the law on the important issues it may address,â€� DOJ spokesperson Alejandro Miyar wrote in an e-mail.

Although there will be some familiar faces working with the subcommittee, not all the subcommittee members from the 110th Congress have rejoined the panel.

There were six Democrats and five Republicans on the subcommittee in the 110th Congress. Now, joining Durbin and Coburn will be four Democrats and two Republicans – Sens. Specter (D-Pa.), Russ Feingold (D- Wisc.), Ben Cardin (D-Md.), Ted Kaufman (D-Del.), John Cornyn (R-Texas) and Lindsey Graham (R-S.C.) Graham and Sen. John McCain sponsored legislation in 2005 that would have banned the harsh interrogation methods used against suspected terrorists.

Vice President Joe Biden, Sen. Ted Kennedy (D-Mass.) and Sen. Sam Brownback (R-Kan.) are missing from the subcommittee because they no longer sit on the Senate Judiciary Committee. Also, Sens. Jon Kyl (R-Ariz.) and Sheldon Whitehouse (D-R.I.) will not return to the panel.

The decision of Specter to leave the Republican Party led to the reestablishment of the subcommittee in May, after Senate Judiciary Chairman Patrick Leahy (D-Vt.) disbanded the two-year-old panel in February.

“With the change of administrations, and the transition to this new Congress, we are not continuing the subcommittee,� Leahy said in testimony before the Judiciary Committee in February. “No one should confuse that with a lack of commitment to the human rights agenda.�

The subcommittee was the loser in a game of musical chairs.

Biden was the chair of the crime and drugs subcommittee in the 110th Congress. He relinquished his gavel to Durbin after becoming vice president. The Illinois senator then had to give up his human rights and the law subcommittee chairmanship because Democratic rules didn’t allow him to hold more than one Judiciary subcommittee gavel.

Durbin, in turn, relinquished his crime and drugs subcommittee to Specter in May. He’d held hearings on sentencing dispairities between federal crack and powder cocaine offenses and Mexican drug cartels before handing the gavel to Specter. Durbin said his said the move was not meant to appease the long-serving Pennsylvanian, who’d been stripped of his seniority by the Democratic caucus after switching parties.

“I raised this issue long before feathers were ruffled,� Durbin said at a pen-and-pad session with reporters in May.

In a big boost to the Justice Department’s financial fraud efforts, Congress on Monday sent the Fraud Enforcement and Recovery Act (FERA) to President Obama for his signature.

The legislation is in response to the mortgage fraud and financial services meltdown. It strengthens the False Claims Act, the whistleblowing legislation that has helped the U.S. recover more than $15 billion over the last eight years.  As we reported last month, the bill also authorizes $245 million a year over two years to hire more than 300 federal agents, 200 prosecutors and 200 forensic analysts to rebuild “white collar� enforcement efforts that took a back seat after the 9/11 attacks to counter-terrorism. “This bill is a step toward holding accountable those who have caused so much damage to our economy,� Senate Judiciary Committee Chairman Pat Leahy (D-Vt.), a leading sponsor of the bill, said in a floor statement.

Sen. Ted Kaufman (D-Del.), another leading sponsor, said in a statement: “We can’t have separate sets of rules for people who rob  banks and banks who rob people.� Sen. Charles Grassley (R-Iowa) also introduced the bill and made the following statement upon its passage:

This legislation will send a message to those who have defrauded homeowners and mortgage lenders and will send an even stronger message to those who are thinking about committing a future fraud.  It includes the most significant amendments to the False Claims Act since 1986, which will ensure that court decisions that limit the FCA are overturned and congressional intent is restored.  Congress has done the right thing by passing this legislation, and I hope the president signs it as quickly as possible.

The Federal Bureau of Investigation currently has fewer than 250 assigned to financial fraud cases throughout the country, and can’t investigate the more than 5000 mortgage fraud allegations the Treasury Department receives each month, Leahy’s statement said.