The Standing Rules of the Senate are drafted to encourage vigorous public debate on our nation’s most important issues. Indeed, the U.S. Senate is often referred to as “the world’s greatest deliberative body.” The Rules allow any Senator to seek recognition from the Chair at any time and, absent a temporary agreement to the contrary, to speak without interruption so long as he or she wishes. Debating important questions before the Senate is one way a Senator can highlight an issue, advocate for a change in policy, or voice his or her opinion on pending legislation.
Senate debate occurs in public, and is televised on CSPAN and transcribed in the Congressional Record. For your convenience, I post transcripts of my Senate floor speeches on this site for your review. I hope you find them informative and useful. My web site also makes available information on my voting record and legislation that I have sponsored in the Senate.
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Sessions Speaks on Kagan
Mr. SESSIONS. Mr. President, I thank the Senator from Idaho for his comments. He is one of the most capable lawyers in the Senate. He is a practicing lawyer, clerked on the court of appeals, and is scholarly and careful in what he says. I believe he has raised some very troubling points about this nomination that should be considered.
I say to Senator Crapo, I notice today that a single sitting Federal judge in California has just wiped out proposition 8 that was passed by a majority of the people in California. I guess there were millions voting on that, which simply said a marriage should be defined as being between a man and a woman.
This judge struck down proposition 8 and, obviously, at some point, this will get to the Supreme Court of the United States, as the Senator well knows. It will go first to the Ninth Circuit, on which the Senator clerked, and then it will go to the Supreme Court probably. We will have the nominee who is before us today who has already demonstrated at Harvard that her views about don't ask, don't tell and similar social and marriage issues involve such strong feelings on her part that she has not been able to follow the law. I am worried about that. I think the American people are worried about that, and I think they have a right to be.
Let me talk a little bit about today's decision by a Federal judge in California that was replete, in my view, with results-oriented liberal judicial activism. I think that is what it is, as the court explained in substituting its judgment, the judge's judgment and opinion, for the judgment of the people of California expressed in a full statewide referendum. Now this is a powerful thing.
Was there some clear statement in the Constitution or law that would invalidate the people's expression of what a marriage should be in the State of California? I submit not. This is what the judge said.
[W]hat remains of proponents' case is an inference, amply supported by evidence in the record, that Proposition [8] was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate.
So the judge just declared that laws that are on the books in virtually every State in America--and certainly by referendum in California--are improper. States cannot legislate in this area. It is not ``a proper basis'' on which to legislate.
That is what activism is. It is a judge replacing the people's views with his views.
President Obama has made similar statements. He said that judges should decide cases based on ``one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.''
This was in a floor speech in the Senate delivered from right over there from his desk in which he opposed Chief Justice John Robert's confirmation to the Supreme Court--one of the finest nominees ever to be brought before this body.
This is the kind of rationale, the kind of empowerment that many judges feel. Well, they can just use their broader perspective on how the world works or the depth and breadth of their empathy or their deepest values or core concerns. Whose core concerns? The judge's core concerns. What does this have to do with law, I ask?
Indeed, I would suggest that this whole litany of matters raised by President Obama is not law. These are invitations for judges to allow their bias to influence how they decide cases, an encouragement for judges to use their power of defining the words of our laws and Constitution to promote their agenda. This is an unacceptable view. It is contrary to the great heritage of law this country is based on and should not be tolerated by the judiciary.
When Justice Stevens announced his retirement, whom Ms. Kagan would replace--he served 38 years; he served until age 88--if Ms. Kagan were to serve till that age, she would serve 38 years on the Supreme Court without ever having to answer once to the American people. She has never tried a case. We have no judicial history. She has never really practiced law in any serious way. She has been a political lawyer most of her life. She has been an advocate for a lot of leftwing views and that is all right.
You can have a view that the military's don't ask, don't tell policy--law passed by Congress; it is a law not a policy--you can oppose that. That is fine. That should not disqualify you from serving on the bench. You can be against the death penalty and serve as a good judge if you understand that if the law requires the death penalty, you should have to apply it. You cannot obstruct the law because you do not agree with it. This is basic to the understanding of the American jurisprudence system.
When Justice Stevens announced his retirement, President Obama rephrased his empathy standard that took a lot of criticism and, indeed, was renounced by Justice Sotomayor in her confirmation hearings last year. He said he wanted a nominee with a ``keen understanding of how the law affects the daily lives of the American people.''
Well, I think that is what Congress is supposed to do. We are supposed to be monitoring how the laws affect the daily lives of the American people. If we do not think, as a matter of policy, it is doing it correctly, we should fix the law, change it, eliminate it, and do whatever is appropriate. That is not the judge's responsibility. The judge's responsibility is to enforce the law, to follow the law, or else he is a lawmaker instead of a judge.
When the President announced Elena Kagan's nomination, he said: ``She has often referred to ..... Justice Thurgood Marshall, for whom she clerked, as her hero'' and ``credits him with reminding her that, as she put it, `behind law there are stories--stories of people's lives.' ''
Well, there are stories, and a judge should certainly be very aware of the facts in a case. Judges should not deny relevant evidence. But in the end, the judge must find the true facts, and then apply that truly to the law as it is whether they like it or not.
Activism arises when a judge allows their personal values, even deepest values, core concerns, broader perspectives on how the world works, and the depth and breadth of their empathy to influence decisions. Isn't that bias? Who knows what these judges believe--they have a lifetime appointment and they get to impose their core concerns on us? No. This is a serious matter.
I think the American people understand it because when you empower a judge to do these kinds of things, you have given him control over you. You have given him the power to redefine marriage when the people of the State don't want to. And you have no recourse. They have a lifetime appointment. Some people say nine judges can do that. Only five, really. It only takes five. They meet and have tea and they go to the great salons of Europe, and they get these ideas about how to make America a better place, and they want to come back and get itching to write it into some opinion somewhere.
I would say that no drafter of the Constitution or any of the provisions in it at any point that those amendments were adopted would ever have imagined a Federal judge in California would declare that the people of California's decision to define marriage as it has been since the founding of the Republic as between a man and a woman is unconstitutional. Make no mistake. When a judge says something is unconstitutional, this is not a little bitty matter. The American people have no recourse, except to pass a constitutional amendment. It takes two-thirds of both the House and the Senate and three-fourths of the State. They make it so because they say it is so. There is nothing in the Constitution that defines marriage. If it is defined--the most logical argument is that when it was written, if they had wanted to change the definition of marriage, they would have put it in there, because every State in America at the time the Constitution was drafted and every amendment to it defined marriage as between a man and a woman.
That is what we get. Right now we have had battles over those kinds of
issues. They are the cause celebre of the day, but they become further issues in the future. Do we think maybe in the future it comes down to whether a judge can require the State to raise taxes? Will it require a State to provide insurance to everyone or the Federal Government to do so because the Constitution somewhere said that everybody should have equal protection of the law? Does that mean everybody should have health insurance?
We have one nominee President Obama has submitted, Mr. Liu, who says everybody in America is entitled to constitutional welfare rights. Presumably, if you file a lawsuit in front of him, he would order the State to provide welfare to everybody, whether we can afford it or whether the legislature decided that is the right thing. This is what activism is. It is a serious matter.
I wanted to speak of a few additional points for discussion that relate to matters that have been raised in the last day or so about this nomination. I am trying to be correct in what I say. I want to be correct and fair. This nominee deserves fair treatment and accuracy, and we should try to achieve that in the Senate. If I have said anything before or say anything now that is in error, I hope my colleagues will call that to my attention and I will be pleased to admit that I made an error, if I have, and correct it. Likewise, I am beginning to wonder--I have said this before--since nobody has corrected any significant matter I have stated, they must be agreeing to it.
One of our Senators defended Ms. Kagan by insisting that any arguments she made as Solicitor General were made on behalf of her client, the United States, and should not be held against her. They suggest that her actions as Solicitor General should, therefore, be immune from criticism. In other words, she didn't necessarily do what she thought ought to be done, but she had a duty to defend the law.
It misses the point about the Witt case, the important case I talked about in which I criticized her decisions as Solicitor General. The problem with Ms. Kagan's actions in the Witt case is she did not make all appropriate arguments in defense of her client, the United States. She declined to effectively represent her client, the United States. I went into some length about that today. We are not saying that she must agree with every argument she made as Solicitor General in terms of policy. Solicitors General are required by their duty to defend the laws Congress passes. They don't have to agree with the law, but they have a duty to defend it if it is challenged as being unconstitutional or in some other fashion improper.
What is most important about this is that in the Witt case, it dealt with the military's don't ask, don't tell policy. People can disagree on that, as I indicated, but it was the law passed by Congress and signed by President Clinton. She spent 5 years in the Clinton White House. She never complained to him about the law, to my knowledge. She didn't protest or quit working for him. She goes to Harvard, however, and bars the military from being able to enter the Career Services Office and recruit students because she didn't like the law Congress passed and her former boss signed. She punished the military officers who were there on campus to recruit Harvard students to be JAG officers in the military. Maybe those officers just got back from Iraq and Afghanistan--we were in two wars at the time--yet they were treated as second-class citizens, not allowed to enter the career services office.
Oh, they could call the little veterans group on campus and they could ask them and they could help them. One officer wrote in a memo that was produced by the Defense Department: We were relegated to wandering the halls hoping somebody would stop and speak to us. They weren't able to recruit properly on the Harvard campus. Her suggestion that this was nothing she was doing and unimportant is not accurate. It was a misrepresentation of the grave circumstances that occurred at Harvard when she was dean. She led this effort. She personally led the effort to reverse Harvard's policy and deny the military the right to enter the Career Services Office. They said, Well, it is OK, they can call the veterans groups. They were offended by it. They sent out an e-mail and said we are not able to arrange for these kinds of meetings. We are law students here who happen to be veterans. We can't do what the career services can do to provide assistance to the military. It was plainly against the Solomon amendment which was in effect at all times when she reversed Harvard's policy and began to bar the military from coming on campus.
When she came up for confirmation last year to be Solicitor General of the United States and there were cases filed around the country challenging the constitutionality of don't ask, don't tell, it was clear it might fall to her duty to defend that law, and she was asked in committee about it. She was asked: Will you defend the law? She said: Absolutely, she would. She committed to it. Generally she would commit to defending all laws of the United States and, specifically, in answer to a written question, she committed to defending don't ask, don't tell.
What I wish to say is that my colleagues were in error in their statements about this because it wasn't that she made arguments to the Court that she didn't believe in and that somehow we are unfairly criticizing her for doing that. What I am saying is there were arguments she did not make that she was duty bound to make to defend the law and actions that she was duty bound to take.
It has been said by one of our colleagues that it is ``Lawyer 101'' that an attorney will take positions on behalf of the client even when the lawyer disagrees with it. Well, that is exactly right. An attorney does have an obligation to vigorously defend his or her client, but Ms. Kagan refused to do that. Her client was the United States of America. When the Solicitor General of the United States stands before the U.S. Supreme Court or any lawyer--as I had the privilege to do for 15 years--in the Department of Justice stands up in a Federal court, do you know what they say? The first thing they are asked is, Counsel, the judge will say, is the government ready? And the lawyer says, The United States is ready, Your Honor. The United States is ready. That is who the lawyer's client is: the United States of America. It is not her personal view of don't ask, don't tell. It is not President Obama's interests or idea of what should be don't ask, don't tell; not his views. It is the United States of America. And what is the
position she was defending? The lawfully passed statutes of this Congress signed by her former boss, President Clinton, passing the law don't ask, don't tell that was being challenged.
I am of the view that in failing to properly defend that case, as I said earlier, she violated a direct, specific commitment she made to the Congress and violated her duty even if she hadn't made that commitment as Solicitor General to defend the laws of the United States.
One of my colleagues made reference to Justice Souter, saying:
Justice Souter pointed out in a recent commencement address recently [that] different aspects of the Constitution point in different directions toward different results, and they need to be reconciled.
Judges do have to do that.
Acknowledging these inherent tensions is not only Main Street, it is as old as the Constitution.
Well, there is some truth to that, but Justice Souter's speech and others in his philosophical mold are very troubling. In fact, Justice Souter's speech intellectually followed on to Justice Brennan's 1985 Georgetown speech which is clearly the playbook for judicial activism. In it, Justice Brennan, former Justice of the U.S. Supreme Court, stated:
For the genius of the Constitution rests not in any static meaning it might have had in a world now dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our time.
So if the Constitution's drafters decided that every American from time immemorial, unless the Constitution was specifically amended, had a right to keep and bear arms, Justice Brennan would say, Well, we can look at that. We need to see what the vision for our time is. Maybe we need to consult the Europeans as they did in this recent case, the dissenters in a 5-to-4 vote that narrowly upheld the right to keep and bear arms.
Allowing judges to determine the vision of our time is a recipe for legislating by unelected judges. What is the vision of our time is decidedly in the eye of the beholder. It is the job of the elected branches of government to make these calls in our constitutional system, not the unelected judiciary. The job of the judiciary is to interpret the law, not make the law. That is so basic. Don't we all know that?
As Professor John Baker of LSU put it:
The choice is between two distinct modes of decision-making.
Legislators make laws; they do not write opinions. Legislators can legitimately make laws to govern future conduct only. ..... Legitimate judging, on the other hand, concerns the existing law. Interpretation of the existing law, contrary to lawmaking, focuses on the past. Legitimate interpretation of existing law explains the result in a well-reasoned opinion.
I think that was nicely said. Judges are not empowered to amend laws, to promote their vision. They are not empowered to alter the meaning of the words of laws or the Constitution to promote their core values.
What is Ms. Kagan's view about that? She wrote a law review article entitled ``Confirmation Messes, Old and New.'' It is kind of interesting. She has said nominees should be far more forthcoming when they testify. Most people think she failed to meet the standard in her own law review article. She also quoted Stephen Carter's book, with approval, saying:
In every exercise of interpretive judgment, there comes a crucial moment when the [judge's] own experience and values become the most important data.
The judge's own experience and values become the most important data? That is not law. I don't know what that is, but it is not law.
In a 2004 interview in Metropolitan Corporate Counsel, she said:
The attitudes and views that a person brings to the bench make a difference in how they reach those decisions.
Is that not biased? Is that not an affirmation that a judge can bring to the bench their attitudes and views, instead of being a neutral umpire, putting on that black robe to symbolize impartiality? I think it is. This is a philosophy of law that is afoot in many of our law schools. There is no doubt about it. It is out there. People advocate it. She wrote about and advocated it. Many judges are adhering to this, and it is wrong. They are not empowered to do these kinds of things.
In one interview in a magazine, in 2004, she said:
There should be a range of opinions on the [Supreme] Court; it should not just be about lawyerly qualifications.
The opinions we need on the Court are that a judge should identify the law and then follow it. That is what the view should be.
Mr. President, people are still asserting things about the Harvard issue that I don't think are quite accurate. I do not believe she handled the Harvard military question in any way that is defensible. I have looked at it very carefully. I have laid it out in some detail. And now I wish to respond to some of the statements that have been made.
One their efforts has been to point out and to assert that Elena Kagan treated veterans at Harvard Law School with great respect, hosting them for private dinners in her home, publicly recognizing them and thanking them for their service to our country. She has been praised by several law school veterans who have said Ms. Kagan is not antimilitary. Those things have some truth to them, and Senator Leahy has introduced some letters.
But, for the most part, Dean Kagan's outreach to Harvard Law veterans began after all this brouhaha and the resistance to military recruiting occurred on campus and things got tense.
It was not such a pleasant time. The military veterans were not comfortable. She talked about other students being uncomfortable with the military on campus. She said that herself. So the annual veterans dinner I referred to began in 2006, after the university president, Larry Summers, had instructed the law school to restore equal access to military recruiters and after the Supreme Court had rejected her argument that the Solomon Amendment, which Congress passed to make sure these law schools either admitted the military or ceased getting Federal money--her argument that the Solomon amendment did not require Harvard to give the military access to the career services office was rejected by the U.S. Supreme Court 8 to 0.
According to the military veterans who attended Harvard Law School during this period, 2004 to 2006, the dinners were actually initiated at the suggestion of the school--the university's dean of students, Ellen Cosgrove, to whom the military veterans had expressed their concerns about the hostile campus environment toward the military. In other words, they had gone to Dean Cosgrove and complained about the hostile environment on campus toward the military, and she started some of these dinners. It was only later that Dean Kagan--who was speaking at one time to a protest rally while the military recruiter was in the next building trying to recruit students--she was out there speaking to a protest rally about the military being on campus, saying how wrong she thought the military was.
Most law school veterans who have praised Dean Kagan were either not present at the law school during the height of the controversy or were not then even in the military. Almost all of them were more recent graduates or current students at Harvard, people who liked her outreach efforts at that time. But that was after she was forced to let the recruiters back on campus by the President of the school and by the Supreme Court. None of the individuals who have written and said positive things were members of the student veterans association that she tried to conscript to take care of the needs of the military recruiters. None of them wrote any such letter.
I wished to share a few of those thoughts and again challenge my colleagues to be as accurate as they can in what they say, either for or against this nominee. She is entitled to fair treatment, but these matters are very serious. The American people want judges who are committed to their oath, and their oath says they are to be impartial, that they are to do equal justice to the poor and the rich, and that they are to serve under the Constitution and laws of the United States, not above it. That is the commitment they must have.
We, the Senate, should never vote to confirm any judge--liberal activist or conservative activist--who, once they put on that robe, will not be impartial or provide equal justice but will allow personal biases, core beliefs, prejudices or politics to influence how they decide cases. That is a disqualifying factor.
We must know that any nominee is committed to the ideal of impartial justice. I don't believe this nominee has ever demonstrated that she would be unbiased in these situations, and, indeed, the record indicates she has consistently allowed her personal feelings to override the law and her duties. Therefore, I will oppose the nomination.
I yield the floor and suggest the absence of a quorum.
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