Further Remarks Of Senator Patrick Leahy On The Nomination Of Elena Kagan To Be An Associate Justice Of The Supreme Court

During the three months that this nomination has been pending, Senators have made many statements about Solicitor General Elena Kagan.   I begin today by commending the 23 Senators who came to the floor yesterday to make supportive statements. They were outstanding in describing the qualifications of a nominee who should be confirmed with a strong bipartisan majority.  I also want to acknowledge the extraordinary contributions of Senator Klobuchar.  She spoke eloquently, organized a group of Senators and persevered despite her personal loss.    

In introducing Solicitor General Elena Kagan as his Supreme Court nominee, President Obama, whose 49th birthday is today, praised her “understanding of the law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people.”

Given America’s social and technological development since we were a young Nation, interpreting the Constitution’s broad language requires judges and justices to exercise judgment.  In the real world, there are complex cases with no easy answers.  In some instances, as Justice Souter pointed out in his recent commencement address, different aspects of the Constitution point in different directions, toward different results, and need to be reconciled.  Acknowledging these inherent tensions, is not only mainstream, it is as old as the Constitution and has been evident throughout American history, from Chief Justice John Marshall in the landmark case of McCulloch v. Maryland to Justice Breyer this past June in United States v. Comstock

Real-world judging is precisely what the Supreme Court did in its most famous and admired modern decision in Brown v. Board of Education.  I recently saw the marvelous production of the George Stevens, Jr., one-man play, “Thurgood,” starring Laurence Fishburne.  It was an extraordinary evening, focused on one of the great legal giants of America.  At one point, Justice Marshall reads a few lines from the unanimous decision of the Supreme Court in 1954 that declared racial discrimination in education unconstitutional.  Chief Justice Warren had written: 

In approaching this problem, we cannot turn the clock back to 1868, when the [Fourteenth] Amendment was adopted or even to 1896 when Plessy v. Ferguson was written.  We must consider public education in the light of its full development and its present place in American life throughout the Nation.  Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.

Understanding the facts in context, the entire court helped to end a discriminatory chapter in our history.  The Supreme Court did not limit itself to the Constitution as it was written in 1787.  At that point in our early history, “We the People” did not include Native Americans or African-American slaves, and our laws failed to accord half the population equality or the right to vote because they were female.  Real-world judging takes into account that the world and our Constitution have changed since 1788, starting with the Bill of Rights.  It takes into account not only the Civil War, but the Civil War Amendments to the Constitution adopted between 1865 and 1870, and every amendment adopted since then. 

Does anyone dispute that most of the Bill of Rights is correctly applied today to the States through the Due Process Clause of the Fourteenth Amendment?  Our Bill of Rights freedoms were expressed only as limitations on the authority of Congress.  Does anyone think that the Equal Protection Clause of the Fourteenth Amendment cannot be read to prohibit gender discrimination?  It was most assuredly not women that its drafters had in mind when it was adopted. 

The Constitution mentions our “armed forces” but there was no Air Force when the Constitution was written.  Does anyone doubt that our Air Force and Marines are encompassed by the Constitution even though no Framer had them in mind when the Constitution was being ratified?  Of course not.  Likewise, in its interpretation of the “commerce clause” and the intellectual property provisions providing copyright and patent protection for “writings and discoveries,” the Supreme Court has sensibly applied our constitutional principles to the inventions, creations and conditions of the 21st century.  Jefferson and Madison may have mastered the quill pen, but they never envisioned modern computers or phones, let alone smartphones and satellites. 

The First Amendment expressly protects freedom of speech and the press, but the Supreme Court has applied it, without controversy, to television, radio, and the Internet.  Our Constitution was written before Americans had ventured into cyberspace or outer space.  It was written before automobiles, airplanes or even steamboats.  Yet the language and principles of the Constitution remain the same as it is applied to new developments.  Our privacy protection from the Fourth Amendment has been tested but survived because the Supreme Court did not limit our freedom to tangible things and physical intrusions but sought to ensure privacy consistent with the principles embodied in the Constitution.

If confirmed, Elena Kagan would be the third member of the current Supreme Court to have had experience working in all three branches of the Government prior to being nominated.   Some are criticizing her work during the Clinton administration as political.  I suggest that a fair reading of her papers indicates that she has the ability to take many factors into account in analyzing legal problems and that her skills include practicality, principle and pragmatism.  These were all used in their service to the American people by Justices O’Connor, Souter and Stevens.  

What others seem to want is assurance that a nominee to the Supreme Court will rule the way they want, so that they will get the end results they want in cases before the Supreme Court.  They do not want an independent judiciary.  They demand justices who will guarantee the results they want.  That is their ideological litmus test.  As critics level complaints against Elena Kagan, I suspect that the real basis of that discontent will be that the nominee will not guarantee a desired litigation outcome.  Of course that is not judging.  That is not even umpiring.  That is fixing the game.  It is conservative activism plain and simple.  Solicitor General Kagan was right to reject that as “robotic.”  

We can do better than that.  In fact, we always have done better than that.  In reality, we can expect Justices who are committed to doing the hard work of judging required of the Supreme Court.  In practice, this means that we want Justices who will pay close attention to the facts in every case that comes before them, to the arguments on both sides, to the particular language and purposes of the statutes they are charged with interpreting, to their own precedents, and to the traditions and longstanding historical practices of this Nation.  Applying these factors would reflect an appreciation for the real world ramifications of their decisions.  Judging is not just textual and is not automatic.  If it were, a computer could do it.  If it were, important decisions would not be made 5 to 4.  A Supreme Court Justice is required to exercise judgment but should appreciate for the proper role of the courts in our democracy. 

The resilience of the Constitution is that its great concepts and phrases are not self-executing.  Constitutional values need to be applied.  Cases often involve competing constitutional values.  In the hard cases that come before the Court in the real world, we want – and need – Justices who have the good sense to appreciate the significance of the facts in the cases in front of them as well the ramifications of their decisions in human and institutional terms.   I expect in close cases that hardworking Justices will sometimes disagree about results.  I do not expect to agree with every decision of every Justice.   I understand that.  I support judicial independence.  I voted for Justice Stevens, Justice O’Connor and Justice Souter, who were all nominees of Republican Presidents.

We 100 who are charged with giving our advice and consent on Supreme Court nominations should consider whether those nominated have the skills, temperament and good sense to independently assess in every case the significance of the facts and how the law applies to those facts.  I believe that Elena Kagan does meet that test.  The more judges appreciate the real world impact that their decisions have on hard working Americans, I believe the more confidence the American people will have in their courts.  I have urged Republican and Democratic Presidents to nominate people from outside the judicial monastery because I think real world experience is helpful to this process.  The American people live in a real world of great challenges.  We have a guiding charter that provides great promise.  The Supreme Court functions in the real world that affects all Americans.  Judicial nominees need to appreciate that simple, undeniable fact and promise to uphold the law that Americans rely on every day for their continued safety and prosperity.

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