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Events, Speeches &
Floor Statements

Klobuchar Speaks in Favor of Elena Kagan's Nomination to the Supreme Court

June 12, 2010 | Watch

Mr. President, I thank my two colleagues, Senators Shaheen and Stabenow, for joining me in making open arguments in favor of Solicitor General Kagan to be the next Associate Justice of the Supreme Court. If Members listened to Senator Shaheen's discussion of the experience of Elena Kagan, something quickly emerged: she has always been on the front line and has not been afraid to get into battle. She is the one who had to go before the Supreme Court and argue the Citizens United case that basically came up with a ruling from the current Supreme Court with which I don't agree. The Supreme Court went beyond their bounds in how they interpreted election law, reversing decades of precedent. Yet it was Elena Kagan who was the one willing to stand there as Solicitor General and basically say corporations are not people; people are people.

I like the thought of someone of her experience--such an intellectual heavyweight--getting on the Court to basically match Justice Roberts.

As Senator Shaheen has pointed out, she has consensus-building skills in addition to that. She is someone who has been able to bring together people of diverse views. With such a divided Court, as we see right now, I think it is going to be very helpful--if she gets through our process, which I believe she will--to have her on that Court. She also is a trailblazer.

She was the first woman dean at Harvard Law School in their 186-year history. In 2009 she became the first woman to serve as Solicitor General. As has been pointed out, she has also been a law professor, a member of the White House Counsel's Office, and a domestic policy adviser to President Clinton.

When I look at her resume, I notice two things: The first is that she has practical experience thinking about the impact of laws and policies on the lives of ordinary Americans. When you are involved in considering the nitty-gritty details of policies--as has emerged, as we look at all the thousands and thousands of documents she has given to the Judiciary Committee--she is someone who has been actually involved in crafting those ideas, those policies. When you have to figure out, as she has, whether to compromise or hold firm on a piece of legislation, you have to know exactly what the consequences of your recommendations will be. You have to think about the lives that will be impacted.

The second thing I notice about her resume is that she has a track record of listening to different viewpoints and bringing people together--whether it is her legacy of helping to recruit talented academics to Harvard from across the political spectrum or working with Senators from both parties on antitobacco legislation.

It is worth noting this is a nominee who once got a standing ovation from the Federalist Society when she spoke to them--that is a conservative legal society--during her time as a law school dean. It was not because she agreed with them on every substantive matter. In fact, she noted that at the beginning. It was because they respected her because she was willing to listen to other viewpoints and bring in other viewpoints. We need that kind of consensus builder on the Supreme Court of the United States.

Finally, we have to add to her list of achievements that she managed to calm the factionalism and frustration for which the law school faculty had previously been known. I can tell you after managing 167 lawyers it is not easy, but it is even harder to manage a number of law professors.

What you come up with, when you look at her whole career, is she has the practical experience of reaching out to and working with people who have different beliefs. I think that is exactly what we need on the Supreme Court.

Some of my colleagues, as has been pointed out, question whether she is fit to be a Supreme Court Justice because she has never before been a judge. Well, right now every single Justice on that Supreme Court has been a judge. While they may have different backgrounds, they have come up through what is called the "judicial monastery." I think the fact that the President has nominated someone who has been on the front line, deciding policies but also arguing intricate legal cases, is a good thing.

As has been pointed out by Senator Shaheen, I do wonder whether these same colleagues who are objecting on the judicial experience issue would have objected to putting Chief Justice Rehnquist on the Supreme Court or Justice Brandeis or Justice Frankfurter. They did not have any judicial experience either.

It is worth noting this opinion on the importance of judicial experience is not shared by at least one member of the Supreme Court who believes that may not quite be necessary. In a speech he gave at the end of May, Justice Scalia said he was "happy to see that this latest nominee is not a federal judge--and not a judge at all."

For historical context, Justice Scalia noted when he first arrived at the Supreme Court in 1986, three of his colleagues had never been a Federal judge. Chief Justice Rehnquist came to the bench from the Office of Legal Counsel. Justice Byron White was Deputy Attorney General. Justice Lewis Powell was a private lawyer in Richmond. Beyond that, her current job--Solicitor General--as Senator Shaheen noted, is actually referred to as "the tenth Justice" because it is such an important position. She represents the people before the Supreme Court. That is incredibly important training for an individual nominated to serve on the Supreme Court.

It is worth noting that the last Solicitor General who subsequently became a Supreme Court Justice was none other than Thurgood Marshall--Elena Kagan's mentor and former boss.

So I hope we can put to rest this idea that only judges are qualified to be Justices. That is not a standard that we have applied throughout history, and it is not one we should start applying today.

Just think--and I will end with this, Mr. President--how far we have come. When Sandra Day O'Connor graduated from law school 50 years ago, the only offer she got from a law firm was for a position as a legal secretary. Justice Ginsburg faced similar obstacles. When she entered Harvard in the 1950s, she was only one of nine women in a class of more than 500, and one professor actually asked her to justify taking a place in that class that could have gone to a man. Later, she was passed over for a prestigious clerkship despite her impressive credentials.

In the course of the more than two centuries of this great country, 111 Justices have served on the Supreme Court. Only three have been women. If confirmed, Ms. Kagan would be the fourth, and for the first time in the history of our country three women would take their places on the bench when arguments are heard in the fall.

I look forward to our Judiciary Committee hearing. I have to tell you, I hope my colleagues listen to what Elena Kagan has to say. When she came before our Judiciary Committee as a nominee for Solicitor General, she was very impressive. She got bipartisan support. I would like to see that again.

Our job is to look at the qualifications of this nominee. Our job is to decide if she is competent. As Senator Graham said during the confirmation hearing for Justice Sotomayor, he may not have picked a particular nominee, he may have supported someone else for President, but in the end, our job is to look at their qualifications and whether they will serve our country well on the Supreme Court.

I believe the answer for Elena Kagan will be yes. We are all looking forward to the hearings, and I urge my colleagues to come to the hearings with an open mind.

Mr. President, I yield the floor.