WASHINGTON, D.C. - Senator John Kerry (D-Mass.) today delivered the following remarks at the confirmation hearing of Solicitor General Elena Kagan to be the next Associate Justice of the Supreme Court of the United States:
Mr. Chairman, 16 years ago I had the privilege to introduce Stephen Breyer to this Committee.
With the loss today of Senator Byrd, I am particularly reminded of Senator Kennedy sitting beside me that day. As you know, Ted served on this Committee for 46 years - and I know the pride he would feel seeing Elena Kagan nominated for the Supreme Court of the United States.
When Ted introduced then-Judge Breyer, he quoted Oliver Wendell Holmes that “every calling is great when greatly pursued.” Those words applied to Stephen Breyer, and I can share with you my complete confidence that they apply equally to Solicitor General Elena Kagan.
Massachusetts is proud of Elena Kagan’s accomplishments, and we believe that through these hearings as you get to know her as we do, she will earn broad bi-partisan support just as she did when she was nominated as Solictor General.
By now we have learned the high points of her record - a trailblazing pace culminating in her selection as the first woman to serve as Dean of Harvard Law School and the first woman to serve as Solicitor General. If confirmed, she will make history once again. In an America where women comprise more than half the population, she’ll join Justices Ginsberg and Sotomayor and for the first time in our history, a full third of the Court will be women.
But there’s much more that distinguishes Elena: Her life has been characterized by her passion for public service and her awareness of what it means to be a public citizen. A close friend from her days clerking for Justice Marshall, remembers Elena interviewing at a big law firm in New York, meeting with a young partner who - with no family to support - was pulling in close to a million dollars a year. So Elena asked him, “What do you do with all that money.” And he replied, “I buy art.” Elena just shook her head in the conviction that there were better ways to expend her life’s work, and she continued to pursue efforts to more directly impact the lives of those around her.
Elena’s skills and intellect quickly brought her to the attention of the Clinton White House which is when I first got to know her. I’d been asked by the Chairman of the Commerce Committee to help break through a stalemate on a bi-partisan tobacco bill. It was a difficult issue for both caucuses. Elena became the Administration’s point person. When we started out, no one gave us hope of getting close to passage. But Elena camped out in the Vice President’s office off the Senate floor, shuttling back and forth to the White House. She worked night and day, working every angle, thinking through every approach. On the eve of the Commerce Committee’s markup, things seemed to be falling apart. But Elena wasn’t going to let that happen. She got together with the Republican senators and staff, listened carefully, and helped all of us to meet the last minute objections. It was classic Elena - she saw a path forward when most folks saw nothing but deadlock. And it led to a 19-1 vote to pass the bill out of Committee - a mark of bi-partisanship that few imagined was possible.
She was tough and stubborn when necessary, but she also knew when it was necessary to strike a compromise. She had a knack for knowing how to win people over - an ability to make people see the wisdom of an argument. I remember lots of late nights in a very quiet Capitol building, walking off the Senate floor to meet with my staff and Elena. And, invariably, Elena would have another new idea, a fresh approach. It was a tutorial in consensus-building from someone for whom that was pure instinct - and it won Elena the respect of Republicans and Democrats alike.
No doubt her hands-on experience working the governing process is a critical component of what makes her a terrific choice - someone who really understands how laws are created and the real-world effects of their implementation. It’s a reminder why some of the greatest Justices in our history were not judges before they sat on the highest Court - and among those are names like Frankfurter and Brandeis.
I might add that she brought the same pragmatic knack for consensus building to her stewardship at Harvard Law. There she found what was affectionately acknowledged as a dysfunctional and divided campus - and transformed it again into a cohesive institution, winning praise from students and faculty across the ideological spectrum. Elizabeth Warren, Elena’s colleague at Harvard and Chair of the Congressional panel overseeing our relief efforts, says simply “she changed morale around here.”
Charles Fried, the former Solicitor General under President Reagan and renowned conservative constitutional expert, says of her prospects as a Justice: “I think Elena would be terrific - because, frankly, the Court is stuck. The great thing about Elena is there’s a freshness about her that promises some possibility of getting away from the formulas that are wheeled out today on both sides. I have no reservations about her whatsoever.”
John Manning, the first hire under Kagan’s deanship - a conservative and an expert on textualism and separation of powers says: “I think one of the things you see in Kagan as Dean was that she tried to hire folks with different approaches to law and different ideological perspectives. She was equally as strong in her praise for Scalia as she was in her praise for Breyer - she celebrated both. It’s a good predictor of how she’ll be as a judge. She would be fair and impartial - the sort of judge who would carefully consider briefing and argument in every case. The sort of judge I would want if I didn’t know which side of the case I was arguing.”
And so, my colleagues, I’m glad that in these next days you’ll get the chance to know Elena as so many of us have in Massachusetts -as an extremely capable public servant well grounded in the Constitution, and committed to the values we all share as Americans.
I always remember what Justice Potter Stewart said about what makes a first rate judge. He said “The mark of a good judge is a judge whose opinion you can read and . . . have no idea if the judge was a man or woman, Republican or Democrat, a Christian or Jew . . . You just know he or she was a good judge.” I believe Elena Kagan will meet that standard - and I have every confidence that she’ll be outstanding in every sense of the word.
Thank you, Mr. Chairman, for the privilege of introducing this fine person on this historic day.
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Senators waded into a transatlantic antitrust dispute on behalf of Oracle Corp. today, urging European regulators to approve the database software company’s proposed acquisition of Sun Microsystems Inc.
The $7.4 billion deal cleared the Justice Department’s antitrust review earlier this year, but has been held up by European Union officials in Brussels who issued objections to the sale in early November.
The bipartisan letter, signed by Sens. John Kerry (D-Mass.), Orrin Hatch (R-Utah), and 57 others comes on the heels of a public back-and-forth between antitrust officials in Washington and Brussels over the deal.
The letter echoes a recent DOJ Antitrust Division statement asserting that the deal did not raise competition concerns.
“We respectfully request the European Commission expedite the completion of its investigation into this transaction,” the letter says. “The United States Department of Justice, after an intensive investigation, closed its inquiry into this transaction without taking any action.”
The letter also expresses concern that the delay might force layoffs at Sun. Oracle’s combative chief executive, Larry Ellison, said that Sun is losing $100 million each month the purchase is held up. Sun also said last month it would cut 3,000 jobs due to uncertainty in the pending sale.
European concerns focus on MySQL, an open source database that Sun owns. Programmers can access and build on MySQL for free. Critics argue that if Oracle owns MySQL, it will stop investing in the software and keep it from developing into a product that could compete with Oracle’s more sophisticated databases.
Critics of the deal fired back at the letter. “Resorting to lobbying is typically what companies do when they can’t win on the substance of a case,” said Florian Mueller, a public policy advisor to MySQL founder Michael “Monty” Widenius, who has campaigned against the deal.
“It would have been a better idea for the 59 senators to send a letter to Larry Ellison, asking him to commit to divest MySQL,” he said.
Hatch and Kerry announced the letter in a joint press release. The letter reflects long-simmering concerns among lawmakers about European antitrust enforcement. “I have become increasingly concerned about the growing body of evidence that foreign regulatory agencies are unfairly using their review processes to impede the business of American corporations,” Hatch said in the statement.
When European regulators blocked General Electric’s bid for Honeywell International in 2001, Sen. Jay Rockefeller (D-W.V.) sent a similar letter urging the European Commission to reconsider.
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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.”
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.”
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Democratic Massachusetts Sens. Edward Kennedy and John Kerry recommended that President Obama nominate Carmen M. Ortiz to be the next Massachusetts U.S. Attorney, the senators said in a statement released yesterday.
Ortiz, who has spent a dozen years in the Massachusetts U.S. Attorney’s Office, would be the first Hispanic and woman U.S. Attorney for the state. She would succeed Michael J. Sullivan, who stepped down last month.
“It’s a tremendous challenge, but I think one that I’m prepared to take and I’m prepared to meet,” Ortiz told The Boston Globe. “I feel very grateful, and I’m humbled by the senators’ confidence in me.”
A committee went through more than a dozen candidates for the post, but the senators said Ortiz was a “standout throughout this process.”
” We believe that her prosecutorial experience, commitment to public service, and insight into criminal justice issues will make her an exceptional United States Attorney,” the senators said in the statement. “She has lived the American dream, worked hard for every accomplishment she’s achieved, and will ensure that the U.S. Attorney’s Office for Massachusetts is a leader in our community and around the country.”
Ortiz is not free from controversy, however. The US Court of Appeals for the First Circuit had a man resentenced for defrauding 38,000 people in a telemarketing scheme because Ortiz did not follow through on her promise to propose a lighter sentence, The Globe reported.
The senators’ recommendation also comes as a bit of a surprise, with better known lawyers Michael B. Keating and Martin F. Murphy, both from the Foley Hoag law firm, among the finalists for the position, The Globe said.
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