WASHINGTON – Today, U.S. Senator Herb Kohl voted as part of the Senate Judiciary Committee to approve Solicitor General Elena Kagan to serve on the Supreme Court. Kohl is second in seniority among Democrats on the Committee, which is responsible for conducting the hearings as the Senate engages in its Constitutional role to "advise and consent" on Supreme Court nominations. Kohl delivered the following remarks prior to the Committee vote.      

I am pleased to support General Kagan's nomination to the Supreme Court.  Her confirmation will be a milestone that we can all be proud of -- for the first time in history three women will be serving on the Supreme Court at one time.   

General Kagan came before this Committee with an impressive resume that had all the trappings of an accomplished lawyer worthy of appointment to the Supreme Court.  During her hearings she proved herself to be well qualified for the job.   

She impressed us with her sharp mind, keen intellect, and comprehensive knowledge of the Constitution and the law.  She pledged to consider each case with an open mind and to impartially uphold the rule of law.  And, she appeared mindful of the need for judicial modesty and fidelity to precedent, but not when it stands in the way of ending injustice or guaranteeing our fundamental rights.   

At times during the hearing, Solicitor General Kagan seemed to be somewhat more candid than previous nominees.  She disavowed a purely originalist interpretation of the Constitution, recognizing that such a limited approach will not always solve our 21st Century problems.  And, I was pleased that she unequivocally expressed her support for opening the Supreme Court to cameras. So I believe that with General Kagan's confirmation the American people will be one step closer to seeing for themselves the Supreme Court debate our most pressing legal and Constitutional issues.   

But like so many nominees before her, General Kagan often retreated to the generalities and platitudes that she once criticized.   I am pleased that she rejected the analogy that Supreme Court Justices are like umpires, simply calling balls and strikes.  Instead, she did acknowledge that each Justice's legal judgment determines the outcome of close cases.  Yet her opaque and limited answers to questions about who she is and her views on important issues left us with little insight into what informs her unique legal judgment and how it will impact those close cases.   

I think it was proper for her to decline to comment on potential cases and hypothetical facts.  But General Kagan's refusal to "grade cases" extended far beyond her obligation to avoid prejudging matters that might come before her.  Too often we heard detailed explanations about the state of the law, but learned little more about what weight she would give to relevant precedent.  The substance of her answers was so general at times, that it would be difficult to distinguish her answers from those of any other nominee.   

I say this not to chastise Solicitor General Kagan, whom I greatly respect.  The problem I have outlined is inherent in our hearing process, not in General Kagan.  All nominees in the last few decades have answered questions with eloquent words and collegial conversations, but when it comes to their substantive views they say the bare minimum necessary to get confirmed.    

As I have said before, the confirmation process demands more than that.  This is the public's only opportunity to hear from General Kagan more than a recitation of her resume and her knowledge of the law. In my opinion she made small in-roads, but we still have a long way to go in meeting the high standard to which we should hold Supreme Court nominees.   

Nonetheless, I am voting for General Kagan because she is unquestionably qualified, has a record of being a principled, consensus-building lawyer, and because I believe her judicial philosophy is within the mainstream of our country's legal thought.  I am confident that she will make a superb Supreme Court Justice and is a worthy nominee to carry on Justice Stevens' long legacy of exemplary public service to our nation.  

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