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Sessions Discusses Kagan's Judicial Heroes
Mr. SESSIONS. Madam President, I appreciate Chairman Leahy. He is a strong and effective leader of our committee. We agree a lot of times. I try to work with him, and sometimes we disagree. One thing we will soon be doing that I look forward to very much is going to the White House--maybe in 30 minutes or so--to participate in the signing of a bill to eliminate the vast disparity between crack and powder cocaine sentences. The sentencing mechanism under the guidelines I think was unfair and needed to be corrected. I have been working on that issue for some time, and so has Chairman Leahy. We certainly agree on a lot of issues and get some things done, but we do not agree on this nomination.
The office of Justice of the U.S. Supreme Court is one of the most important positions in our National Government. Justices are granted a degree of independence unequaled anywhere in the United States. Justices hold lifetime terms, subject only to impeachment, and Congress may not even reduce their pay. Why did the Founders take such a step? They wanted our courts to be impartial, doing justice to the poor and the rich under the Constitution and laws of the United States, as their oath says, and they did not want them subject to political or other pressures that might affect their objectivity. They wanted judges who could do the right thing year after year, day after day.
Presidents get to nominate, but the Senate must confirm. This advise-and-consent power the Constitution gives is a confirmation process; it is not a coronation.
Here, five Justices on the Supreme Court can hold--and four of them recently voted to, not the five necessary to render a majority opinion--that a company cannot publish a book or a pamphlet that criticizes a politician before an election. Five justices can hold that the government can allow States and cities to deny Americans the personal right to keep and bear arms, a right clearly stated in the Constitution.
The American people have no direct control over these Justices. All they have and what they have a right to expect is that our Justices exercise self-control year after year, decade after decade. If this young nominee, Elena Kagan, were to serve to the age of the individual she seeks to replace, she would serve 38 years on the Supreme Court.
Well, I am not able to support Elena Kagan for this office. I believe she does not have the gifts and the qualities of mind or temperament one must have to be a Justice. Worse still, she possesses a judicial philosophy that does not properly value discipline, restraint, and rigorous intellectual honesty. Instead, she seems to admire the view, and has as her judicial heroes, judges who favor expansive readings of what they call the living Constitution; whereby, judges seek--and in President Obama's words, who certainly shares this view--to advance ``a broader vision of what America should be.''
Well, I don't believe that is a responsibility or a power given to judges--to advance visions of what America should be. Whose vision is it they would advance, I would ask. It would be the judge's vision. But they weren't appointed for that purpose. They were appointed to adjudicate cases.
President Obama's judicial philosophy, I think, is flawed, and I certainly think Ms. Kagan shares his philosophy. The President basically said so when he appointed her. Her friends say it is so. Her critics say so. Her record of public action says so, and the style and manner of her testimony at the hearing evidenced such an approach to judging. I don't think it is a secret. I think this is pretty well known, that this is not a nominee committed to restraint or objectivity but one who believes in the power of judges to expand and advance the law and visions of what the judge may think is best for America.
Ms. Kagan has been described as collegial, engaging, a consensus builder. These are fine qualities in many circumstances, and I am sure she possesses them. She seems to. But as to personal discipline, clarity of mind, the ability to come quickly to the heart of a matter, objectivity or impartiality, and scrupulous intellectual honesty--characteristics essential for a judge--not so much has been said. Perhaps this is so because many liberal activists in America have lost faith in the idea of objectivity, which means they have lost faith in the reality of objective truth, the finding of which--the finding of truth--has been the goal, the central focus of the American legal system since its creation.
Our modern law school minds and some false intellectuals far removed from real trials--and I have had the honor and privilege to have spent 15 years trying cases before Federal judges and so I have a sense of this, I truly believe--are removed from these trials and from the necessity of rules for civil order. They think, many of them do--these professors and theoreticians--that laws are just tools for the powerful to control the powerless and that words can't have fixed meanings. Things change. We can't consult 16th century dictionaries to find out what the Founding Fathers meant when they wrote our Constitution. Indeed, Justice Sotomayor recently confirmed this when she quoted, with approval, the line: ``There is no objectivity, just a series of perspectives.''
Americans are sick of political spin by politicians, and they do not want it from judges. They reject judges who rely on their empathy, as the President said a judge must have and that is what he looks for in a judge. The American people don't believe judges should rely on their empathy to decide legal cases or seek to advance their vision of what America should be. They know Justices are not above the law. They know Justices should be neutral umpires, not taking sides in the game. Above all, they know judges--especially Supreme Court Justices--should not legislate from the bench.
I do not desire that the Supreme Court advance my political views. It is enough, day after day, that the Court follows the law deciding cases honestly. No more should ever be asked of them. I might not agree one day with this case or that one, but we have a right to expect those judges would be objective and not promote agendas. A recent commentator once said: ``We liberals have gotten to the point where we want the court to do for us that which we can no longer win at the ballot box.''
Well, this nominee, I think, in my honest evaluation, comes from that mold. Yes, she is young, but her philosophy is not. It is an old, bankrupt judicial activism--a philosophy the American people correctly reject. In her writings, her judicial heroes, her extensive political activities, her actions at Harvard to unlawfully restrict the military, her hostility to congressional actions against terrorism in a letter she wrote, her efforts to block restrictions on partial-birth abortion while in the Clinton White House, her arguments before the Supreme Court last year that Congress can ban pamphlets criticizing politicians and, perhaps the most disturbing to me as someone who spent 15 years in the Department of Justice, her actions as Solicitor General of the United States, whereby she failed to defend the don't ask, don't tell congressional law--not military policy, a law she had openly, deeply opposed but promised to vigorously defend were she to be confirmed as Solicitor General--leave no doubt what kind of judge she would be: an activist, liberal, progressive, politically minded judge who will not be happy simply to decide cases but will seek to advance her causes under the guise of judging.
In addition, her defense of these positions at her hearings, her testimony, in my opinion, lacked clarity, accuracy, and the kind of intellectual honesty you look for in someone who would sit on such a high and important Court. Indeed, her testimony was curious. She failed to convey to the committee, in my opinion, a recognition of the gravity of the issues with which she had been dealing and the nature of her role in dealing with some of these issues that she was involved with in her career. She seemed to suggest that things happened around her and she did all things right and no one should get upset about it.
Some of these concerns, I think, could have been overcome, had we seen the superb quality of testimony at her hearing as given by that of Justices Roberts and Alito at their hearings. But, alas, that we did not see, not even close. Glib, at times humorous, conversant on many issues but not impressive on any in a more serious way, in my view. Based on so little serious legal practice--only 2 years, right out of law school in a law firm and 14 months as Solicitor General--this perhaps should not be surprising. The power of the testimony of Roberts and Alito did not spring fully formed from their minds either, though both seemed to be naturally gifted in the skills needed for superior judges, and I fear Elena Kagan is not so blessed.
While she is truly intelligent, the exceptional qualities of her mind may be better suited to dealing with students and unruly faculty than with the daily hard work of deciding tough cases before the Supreme Court. But Roberts and Alito, on the other hand, were steeped in the law over many years as lawyers and judges. That is who they were. That is their skill. That was their craft. That was their business. They understood it. It showed. Ms. Kagan did not show that. I believe that lack of experience was part of the reason her testimony was unconvincing.
I think a real lawyer or experienced judge who had seen the courtroom and the practice of law would not have tried, as she did, to float their way through the hearing in the manner she did. Her testimony failed to evidence an understanding of the gravity of the issues with which she was dealing and the important nature of her role in them. She seemed to suggest these events just happened around her, none of which was her responsibility. Several times in the course of her testimony she inaccurately described the circumstances and the nature of the matters in which she had been engaged, to a significant degree. Her testimony was more consistent with the spin the White House was putting
out than the truth. I was surprised and disappointed that she was not more candid and did not, through accurate testimony, dispel some of the false spin that had been put out in her favor.
So now we are at the beginning of the discussion of the Kagan nomination. While I have been firm in my criticisms of the nominee, I have given considerable thought to the criticism that I have made and tried not to be inaccurate in them. I believe they are correct. But if I am in error, I will be pleased to admit and correct that error. No nominee should have their record unfairly sullied in this great Senate. That would be wrong. I, therefore, ask and challenge the supporters of the nominee to point out any errors in my remarks as we go forth so we can, above all, get the facts straight.
The matters I will set forth today and later are serious. There is disagreement, I believe, between what the record, the facts, and the testimony show and the White House spin and even the Kagan spin--and I use that word carefully. So let us, therefore, begin this debate in all seriousness. Let us get to the bottom of these matters. There is a truth. We can ascertain what happened. Let us find out what happened in these matters. Let us get to the bottom of it.
Some raise the question of how many Republicans will vote for the nominee. Another question to ask is: How many Democrats will vote against the nominee? I call on every Senator to study the record and make an informed and independent decision. We are not lemmings. We have a constitutional duty to make an independent decision. So I urge my Democratic colleagues to not just be a rubberstamp, to not allow political pressures to influence your decisions but conduct an independent and fair analysis of the nominee. I believe if Senators strongly advocate and believe judges should follow the law, not make it; that they should serve under the Constitution and not above it; that they should be impartial and objective--if Senators believe in that--they should have very serious trouble with this nomination.
At this moment I am going to briefly mention a few of the serious concerns that were raised in the committee. I will in greater detail go through each of them in the next several days. I am sure other Senators will talk about them also. I will attempt to do so honestly and fairly, and at the end I will be listening to see if somehow I have misjudged the nominee on these matters and whether I should change my views. But I am very serious when I say the actions of this nominee over the entirety of her career indicate an approach to judging that is inconsistent with the classic American view of a judge as one who shows restraint, who follows the law, who adjudicates the matters before the court, and who is objective and fair.
One of the more serious issues that has been discussed quite a bit is the nominee's handling of the U.S. military while she was dean at Harvard. She reversed Harvard's policy and banned the military from the campus recruiting office. During that period of time a protest against the military was held. She spoke to that protest crowd while in the building next door a military recruiter was attempting to recruit Harvard students for the U.S. military.
She participated in the writing of a brief to oppose the don't ask, don't tell policy which she deeply opposed.
The U.S. military did not have a policy called don't ask, don't tell. That was a law passed by the U.S. Congress and signed by President Clinton. It was the law of the land and it was not their choice. They followed, saluted, and did their duty. Yet Ms. Kagan barred them from the campus at Harvard. On four different occasions this Congress passed laws to try to ensure that our military men and women, during a time of two wars, were not discriminated against on college campuses in this country. One of them was a few months before, finally, it was written in a way they could not figure out a way to get around it. That was shortly before she barred them from the campus, subjecting Harvard to loss of Federal funds, which resulted in the military, when they finally realized that she had reversed this policy and found out they had been stonewalled and the front door of the university had been closed to them, appealed to the president of Harvard University and he reversed her position. It was not justified. It was wrong. It should not have been done.
She did not seem to complain about the policy when she worked for President Clinton, who signed the law. But she punished the men and women who were prepared to serve and defend our country, and Harvard's freedom to carry on whatever these silly activities they want to carry on. So this is not a little bitty matter.
When she was nominated for Solicitor General, this was raised and she was asked what if this don't ask, don't tell law is challenged in the Court? We know you oppose it. We know you have steadfastly opposed it. Will you defend it? It is the law of the land. You will be Solicitor General. You represent the U.S. Government before the Supreme Court. Will you defend it?
She flat out said that she would defend the laws passed by Congress and specifically promised to defend don't ask, don't tell. This is a matter of some importance. I asked her about it, gave her opportunity to respond. She took 10 minutes--I did not interrupt her--with her explanation of why she did not assert an appeal to the Ninth Circuit ruling that seriously undermined don't ask, don't tell, because we know President Obama opposes it and we know she opposed it. We know the ACLU opposed it. They were the litigants in this case. She met with the ACLU.
The ACLU did not want the Ninth Circuit case to go up to the Supreme Court. Why? The reason is they expected the Supreme Court would affirm the law. So what did Elena Kagan do? Did she vigorously defend the law? Did she take the opportunity to take this case to the Supreme Court and seek its affirmation by the Supreme Court? No, she allowed the case to be sent back--without appealing it--to a lower court to go through a long, prolonged process of discovery and trial that is disconnected to the plain fact of the legality of the policy. She did not properly defend the laws of the United States and she did not defend the law in this matter.
The Solicitor General has that duty whether they like the law or not. Congressional actions, when challenged, should be defended, particularly one so easily defended, in my opinion, as this one. I believe that is a serious matter, so serious that if my analysis is correct, that she failed to defend that action after explicitly having promised to do so, then this is disqualifying in itself. She would have allowed her personal views, political pressures from perhaps her appointing officer, President Obama, to influence her decision in a way that went against her duty as Solicitor General. We are going to talk about that in great detail as we go along.
As Solicitor General in the 14 months that she was there, she approved a filing of a brief calling on the Supreme Court to review and overturn a ruling by the Ninth Circuit Court of Appeals that had affirmed an Arizona law that said Arizona businesses that failed to use E-Verify or otherwise hire people who are illegally in the country would lose their business license. There is a Federal statute that explicitly says States can revoke licenses of businesses that violate our immigration laws.
This is quite a bit stronger case than the other Arizona case that I think is improvidently being challenged, also by the Obama Department of Justice. But she approved this and again the trial court had ruled the law was good. The Ninth Circuit, the most liberal activist circuit in the country, approved it unanimously, and now it is before the Supreme Court and now she asked that the Supreme Court take it and reverse that.
I think this was bad judgment legally, and I believe it is another example of her personal policy views influencing the decisions she made as a government official--not the kind of thing you want in a Supreme Court Justice.
Then there was the time she was in the Clinton White House and became involved in the great debate we had in the Senate, that went on for a period of years, over the partial-birth abortion issue, where unborn babies are partially removed from the mother and there are techniques used to remove the child's brain. It is a horrible procedure. The physicians group, the American College of Obstetricians and Gynecologists, ACOG, had issued a finding that there was never any medical necessity for this horrible procedure that Senator Daniel Patrick Moynihan referred to as so terribly close to infanticide.
President Clinton apparently was prepared to support a ban on this procedure. But Ms. Kagan, as a member of his staff, advised that it might be unconstitutional. In her notes from her time at the Clinton White House, she said the groups, that is, the pro-abortion groups--the groups will go crazy. She even got ACOG to issue a new statement and was able to influence President Clinton to oppose the legislation. Six or 8 years went by before we finally passed a law banning the procedure.
When I raised this at her hearing, she tried to make it seem like she had nothing much to do with it, like she just happened to be in the White House. She said, ``at all times trying to ensure that President Clinton's views and objectives were carried forward.'' That is all I was doing.
She was asked about that: If that was your view, say so.
Well, I was just doing whatever the President wanted me to do.
I do not think that was an accurate analysis of it. Sometime after it became clear that ACOG had reversed its position--it caused quite a bit of national controversy. She was right at the center of that, contacting the leaders of ACOG and prompting them to change the wording of their statement without talking to the professionals on the committee that had issued the original analysis. There was never any need for this kind of procedure to take place.
This was concerning to a lot of members of the committee. Her testimony is relevant to that.
With regard to the second amendment, she used the same language in her testimony to give the impression that she understood that the Heller and the McDonald cases, recently out of Chicago, were settled law and implied that if she were on the Court, she would vote to uphold the right to keep and bear arms, which is plainly in the Constitution. I went back and asked her again. Settled law became mere precedent. That precedent is the 5-to-4 decision in two cases, Heller and McDonald, where by one vote the Supreme Court is upholding the right to keep and bear arms. If one vote were to switch, the Court could rule 5 to 4 that any city and any State in America could ban completely the right to keep and bear arms, violating what I would say are the plain words of the Constitution. Her actions, both as a law clerk and in the Clinton White House, indicate she has a hostile view to gun ownership. She grew up on the upper west side of New York. It is pretty clear she is one of a group who sees the NRA as a bad group and does not believe in gun ownership as a constitutional right. This is a serious matter because it is such a narrowly decided Court.
Who is this nominee? We will learn more about it as the days go by. I believe her actions, her background, and her approach to judging is unhealthy. It is not the kind of thing we need on the Supreme Court. It evidences a tendency to promote her political agenda rather than being objective. Who is she? Vice President Biden's chief of staff, Ron Klain, a lawyer with whom she worked closely in the Clinton administration and a longtime friend, said of her not long ago:
Elena is clearly a legal progressive ..... I think Elena is someone who comes from the progressive side of the spectrum. She clerked for judge Mikva
A renowned Federal activist judge--
clerked for Justice Marshall--
One of the most activist Justices on the Supreme Court--
worked in the Clinton administration, worked in the Obama administration. I don't think there's any mystery to the fact that she is, as I said, more of the progressive role than not.
What does that mean, a legal progressive? In the early 20th century, progressives thought that intellectuals and the elites in this country knew more than the great unwashed, and they were seeking to advance political agendas that went beyond what a lot of people thought was appropriate and constitutional. The progressives saw the Constitution as an impediment, not as a protector of our liberties, of our freedom, of our prosperity, of our property. They saw it as an impediment to getting done what they would like to do. It is a dangerous philosophy.
Ultimately, all our liberties depend on faithful adherence to the Constitution--the free speech, free press, the right to a trial by jury. All those things that are so important to our rights are in that document.
This nominee is indeed of that background. She is not sufficiently respectful of the plain words of the Constitution. She will be the kind of activist judge who seeks to advance her vision of what America should be. That is not an appropriate approach for a Justice on the Supreme Court to take. That is why I will be opposing the nomination.
I suggest the absence of a quorum and ask unanimous consent that time under the quorum call be charged equally to both sides.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will call the roll.
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