Leahy On Kagan Nomination: Senators Should Reject The Ideological Litmus Test

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) delivered brief remarks on the Senate Floor today regarding the nomination of Elena Kagan to be an Associate Justice of the Supreme Court of the United States.  The full text of his statement follows.

Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee
On The Nomination Of Elena Kagan To The Supreme Court
June 7, 2010

Three weeks from now, the Senate Judiciary Committee will hold the confirmation hearing for President Obama’s nomination of Elena Kagan to succeed Justice John Paul Stevens as an Associate Justice of the Supreme Court of the United States.  Just last year, after reviewing her record, a bipartisan majority of the Senate voted to confirm Elena Kagan to be the Solicitor General of the United States, the top lawyer representing the United States before the Supreme Court, who is often referred to as the “Tenth Justice.”  Elena Kagan is the first woman in America’s history to serve as Solicitor General of the United States.

Not only are we familiar with Elena Kagan from our review of her nomination last year, but we have already received an extraordinary amount of information about her in connection with this nomination.  Last week we received nearly 50,000 pages of documents from the Clinton Library related to Elena Kagan’s service in a significant role in the Clinton White House.  My initial review of these documents shows her to have been a pragmatic and thoughtful advisor to President Clinton as she helped him advance the goals of his administration.  As  a law clerk to Justice Thurgood Marshall, as a professor, as a policy advisor to the President, as Dean of Harvard Law School,  and as Solicitor General of the United States, she appeared to have a clear grasp of how to apply her abilities to meet the challenges of each of those varied positions.  The Committee has received more information from the administration than was made available at this point in the confirmation process for either the Roberts or Alito nominations and I look forward to reviewing the rest of the documents as we receive them in the coming weeks.  

Last year we considered President Obama’s nomination of Justice Sonia Sotomayor.  Although she was confirmed with 68 votes, I was disappointed that so many chose to oppose her historic nomination.  I suspect that many of those who voted against her confirmation will come to regret their action, if they do not already. 

As we begin the process of considering a new nominee to the Supreme Court,   I candidly admit that after watching the unfounded opposition to the Sotomayor nomination last year, I would not be surprised if a majority of Republican Senators were to vote against Solicitor General Kagan, despite her qualifications and no matter how she answers questions during the course of the hearing. Such opposition has nothing to do with the nominee.  I have joked that if President Obama nominated Moses, the lawgiver, or Mother Theresa, Senate Republicans would vote against the nomination.  Such is the willingness of many Republican Senators to heed the extreme ideological tests imposed by the far right. 

Indeed, were Justice Sandra Day O’Connor the nominee pending today, or Justice David Souter or Justice John Paul Stevens or, for that matter, Justice Anthony Kennedy, it is a sad reality that a majority of current Republican Senators would likely vote against their confirmations, as well, for failing that extreme ideological litmus test.  Each of these Justices was nominated by a Republican President.  I voted in favor of each of them.  Each of these Justices served or are serving now with distinction, and all still contribute to the Nation and its courts.  The American people are fortunate to have had all of them serve on the Supreme Court.

Regrettably, most Senate Republicans, now that President Obama is in the White House, seem to want to apply a different standard from when they were considering President Bush’s nominees to the Supreme Court.  I welcome questions to Solicitor General Kagan about judicial independence, but let us be fair.  Let us listen to her answers.  Let us be fair to Solicitor General Kagan and fair to her distinguished record. There is no basis to question her integrity and no reason to presume she will not be independent.  Before someone questions the independence of this nominee, they should have a basis in fact.  No one should presume that this intelligent woman who has excelled during every part of her varied and distinguished career lacks the independence to serve on the United States Supreme Court.  Indeed, many of the justices who are most revered in this country for their independence came to the Court with a background not unlike that of the nominee. 

Not so long ago, Republican Senators contended that a nominee’s judicial philosophy was irrelevant.  All that should matter, they claimed, was that the nominee was qualified, had gone to elite schools, and had good character.  Well, Solicitor General Kagan excelled at Princeton, Oxford and Harvard Law School.  She was the first woman to serve as Dean of Harvard Law School in its 193-year history, and was respected and admired for her inclusiveness.  She is the first woman to serve as Solicitor General of the United States in that office’s 140-year history.  Throughout her career, no one has questioned her character or her integrity.  She obviously meets and exceeds the qualifications standard previously espoused by Senate Republicans.  

Now they apparently want to examine something else, which they will call her “judicial philosophy” or her “independence”.  But, it is not her philosophy, judgment or independence that really matters to them.  What they really want is assurance that she will rule the way they want so that they will get the end results they want in cases before the Supreme Court.  Lack of such assurances was why they and the conservative right wing vetoed President Bush’s nomination of Harriet Miers, the third woman to be nominated to the Supreme Court in our history and the only one not to be confirmed.  They forced Ms. Miers to withdraw even while Democrats were preparing to proceed with her hearing. They do not want an independent judiciary.  They demand justices who will guarantee the results they want.  That is their ideological litmus test.  As they level complaints against Elena Kagan, the real basis of that discontent will be that the  nominee will not guarantee a desired litigation outcome.

I reject the ideological litmus test that Senate Republicans would apply to Supreme Court nominees.  Unlike those on the right who drove President Bush to withdraw his nomination of Harriet Miers and those who opposed Justice Sotomayor, I do not require every Supreme Court nominee to swear fealty to the judicial approach and outcomes ordained by adhering to the narrow views of Justice Scalia and Justice Thomas.  I expect judges and Justice to faithfully interpret the Constitution and apply the law, and also to look to the legislative intent of our laws and to consider the consequences of their decisions.  I hope that judges and Justices will respect the will of the people, as reflected in the actions of their democratically-elected representatives in Congress, and serve as a check on an overreaching Executive. 

I have always championed judicial independence.  I think it is important that judicial nominees understand that, as judges, they are not members of any administration, but judicial officers.  The courts are not wholly-owned subsidiaries of any political party, and our judges should not be political partisans.  Instead, they must uphold the Constitution and the rule of law for all Americans.  That is what Justice Stevens did in Hamdan, which held the Bush administration’s military tribunals unconstitutional, and what he tried to do in his dissent in Citizens United, the Supreme Court’s recent narrow decision in which five activist, conservative Justices opened the door for massive corporate spending in elections.  That is what Justice O’Connor  did when she wrote in the Hamdi decision that even war “is not a blank check for the President when it comes to the rights of the Nation’s citizens,” and when she voted to affirm reproductive freedom, religious freedom, environmental protection laws and the historic Voting Rights Act. 

That is why the Supreme Court’s intervention in the 2000 presidential election in Bush v. Gore was so jarring and wrong.  That is why the Supreme Court’s recent 5-4 decision in Citizens United, which rejected the Court’s own precedent, the law enacted by Congress and signed by President George W. Bush, and 100 years of legal developments, was such a “jolt” and appears so partisan.

Based on the review I have made of Solicitor General Kagan’s career, I say frankly that I expect that she and I will not always agree.  I do not agree with every decision that Justice Stevens has written, but I have great respect for his judgment.  I did not always agree with Justice O’Connor, nor with Justice Souter, and I have my disagreements with some of Justice Kennedy’s decisions.  But I have never regretted my vote in favor of their confirmations.  I respect judicial independence.

The former First Lady Laura Bush was asked recently about President Obama’s nomination of Elena Kagan and she said:  “I think it’s great.  I’m really glad that there will be three [women serving on the Supreme Court] if she is confirmed.”  When Justice O’Connor was asked about the nomination she said that she was “pleased” that Solicitor General Kagan seemed “very well qualified academically” and should be confirmed and that “it’s fine, just fine” that she is without prior judicial experience.  Over the weekend Justice O’Connor elaborated by saying:  “There is no reason you should have served on the Federal court bench” before becoming a Justice.  She had not.  Justice Scalia went even farther on that score, saying recently that he was “happy to see that this latest nominee is not a Federal judge – and not a judge at all.” 

The American people elected the first African-American President, and he is a leader who is committed to the Constitution and rule of law.  With his initial selection to the Supreme Court, he named Justice Sonia Sotomayor, the first Hispanic to serve on the High Court.  She was confirmed last year and has been a welcome addition to the Supreme Court.  Now he has nominated only the fifth woman in the Nation’s history to the Court, a nominee who can bring the number of women serving on the Court to an historic high-water mark of three from the time just a little over a year ago when it was down to just one. 

This month Justice Stevens will be leaving the Court after nearly 35 years of dedicated public service.  The Nation owes him a great debt.  When I visited with him earlier this year, Justice Stevens shared with me the note from President Ford in which he recounted that he was prepared to allow history’s judgment of his presidency to rest on his nomination of John Paul Stevens to the Supreme Court.  I hope that President Obama can look at his Supreme Court appointments, long after his presidency has ended, and feel the same way about his nominees that President Ford felt about Justice Stevens.

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