Senate Begins Debate On Kagan Nomination

Leahy Opens Senate Debate On Supreme Court Nomination - Remarks As Prepared

WASHINGTON (Tuesday, August 3, 2010) – The Senate Tuesday morning began debate on the nomination of Solicitor General Elena Kagan to be an Associate Justice of the Supreme Court of the United States.  Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), who presided over the confirmation hearings on the nomination, opened the debate.


“During her confirmation hearing, Solicitor General Kagan reflected an understanding of the judicial role and a traditional view of deference to Congress and judicial precedent,” said Leahy.  “Hers were mainstream views.  She indicated that she will not be the kind of Justice who would substitute her personal preferences and overrule congressional efforts designed to protect hardworking Americans pursuant to our constitutional role.”

The Judiciary Committee received testimony from Kagan for three days at the end of June.  Kagan testified for more than 17 hours, answering over 540 questions in live testimony, and more than 200 questions for the record.

“Solicitor General Kagan not only has the necessary qualifications to be a Supreme Court Justice, but has also demonstrated her respect for the rule of law, her appreciation for the separation of powers, and her understanding of the meaning of our Constitution,” Leahy said.  “The issue squarely before this body is whether Solicitor General Kagan has the necessary qualifications, respect for the rule of law, and judicial independence to be confirmed by the Senate to serve on our Nation’s highest court.  I believe she does and I am proud to support her confirmation.”

A vote on Kagan’s nomination is expected later this week.  For the text of Leahy’s full statement for the record, click here.  The text of Leahy’s prepared remarks for delivery follows.

# # # # #


Statement Of Senator Patrick Leahy (D-Vt.),

Chairman, Senate Judiciary Committee,

On The Nomination Of Elena Kagan To Be An Associate Justice
Of The Supreme Court Of The United States

August 3, 2010


More than 12 weeks ago, President Obama nominated Elena Kagan to succeed Justice John Paul Stevens as Associate Justice of the Supreme Court of the United States.  Having heard from Solicitor General Kagan at her confirmation hearing five weeks ago, the American people have a sense of her impressive knowledge of the law, her good humor and her judicial philosophy.  She made clear that she will base her approach to deciding cases on the law and the Constitution, not politics or an ideological agenda.  Solicitor General Kagan made us one pledge: that she will do her “best to consider every case impartially, modestly, with commitment to principle, and in accordance with law.”

I have long urged Presidents from both political parties to look outside what I have called “the judicial monastery.”  Republican criticism that the nominee lacks judicial experience ignores a key fact: They are themselves responsible.  President Clinton nominated her to the D.C. Circuit in 1999 and it was Senate Republicans who refused to consider her nomination.  Had they done so, she would have more than 10 years of judicial experience.  Her nomination to the Supreme Court has received the highest possible rating from the American Bar Association.  Her credentials and legal abilities have been extolled by many from across the political spectrum including Justice O’Connor and Justice Scalia.  No one can question the intelligence or achievements of this woman.  No one should question her character either.    

From the moment her nomination was announced, Solicitor General Kagan has spoken about the importance of upholding the rule of law and enabling all Americans to have a fair hearing.  She said “law matters; because it keeps us safe, because it protects our most fundamental . . . freedoms; and because it is the foundation of our democracy.”  Like her, I believe law matters in people’s lives.  The Constitution is our protection.  She understands this, as did her mentor, Justice Thurgood Marshall.

In her contribution to the 1993 tribute to Justice Marshall by the Texas Law Review, Elena Kagan recalled how Justice Marshall’s law clerks had tried to get him to rely on general notions of fairness rather than the strict reading of the law to allow an appeal to proceed on a discrimination claim.  She wrote that the 80-year-old Justice referred to his years trying civil rights cases and said:  All you could hope for was that a court would not rule against you for illegitimate reasons.  You could not expect that a court would bend the rules in your favor.  That is the rule of law.  She concluded, as I do, that Justice Marshall “believed devoutly . . . in the rule of law.”  He was a man of the law in the highest sense.  He understood the Constitution’s promise of equality to his core.  I was disappointed to see the manner in which his legacy was treated by some during the recent confirmation hearing and to read that there are Republican Senators currently serving who recently said that they would vote against Thurgood Marshall’s confirmation to the Supreme Court. 

With this nomination, Elena Kagan follows in the footsteps of Justice Marshall, who also was nominated to the Supreme Court from the position of Solicitor General.  She broke a glass ceiling when she was appointed as the first woman to serve as Solicitor General of the United States and when she served as the first woman Dean of the Harvard Law School.   When the Supreme Court next convenes, for the first time in our history, three women should be serving together among the nine Justices. 

One need look no further than the Lilly Ledbetter case to understand the impact each Supreme Court appointment has on the lives and freedoms of countless Americans.  In the Ledbetter case, five justices on the Supreme Court struck a severe blow to the rights of working families across our country.  Congress had acted to protect women and others against discrimination in the workplace more than 40 years ago, yet we still struggle to ensure that all Americans—women and men—receive equal pay for equal work.  It took a new Congress joined by our new President to reverse the activist conservative majority on the Supreme Court by passing the Lilly Ledbetter Act, striking down the immunity the Supreme Court had given to employers who discriminated against their employees and successfully hid their wrongdoing.

Just one vote on the Supreme Court recently determined in the Citizens United case that corporate money can drown out the voices of Americans in elections that decide the direction of our democracy.  I had hoped that Senate Republicans would join our effort to respond to the conservative activist majority of the Supreme Court wrongly deciding to override its own precedent and 100 years of legal development.  Regrettably, last week they instead filibustered the DISCLOSE Act and gave their endorsement to unfettered corporate influence in American elections.

For all the talk about “judicial modesty” and “judicial restraint” from the nominees of a Republican President at their confirmation hearings, we have seen a Supreme Court these last five years that has been anything but modest and restrained.  What we have seen all too often these last years is the activist conservative members of the Supreme Court substituting their own judgment for those of the American people’s elected representatives.

I think it is important that judicial nominees understand that as judges, they are not members of an administration but judicial officers.  They should not be political partisans but judges who 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 Citizens United.  That is why the intervention by an activist conservative majority in the 2000 presidential election in Bush v. Gore was so jarring and wrong.

During her confirmation hearing, Solicitor General Kagan reflected an understanding of the judicial role and a traditional view of deference to Congress and judicial precedent.  Hers were mainstream views.  She indicated that she will not be the kind of Justice who would substitute her personal preferences and overrule congressional efforts designed to protect hardworking Americans pursuant to our constitutional role.

It is precisely because of Solicitor General Kagan’s independence that many have announced their opposition to her nomination.  They do not like the fact she is genuinely committed to judicial restraint rather than furthering a conservative ideological agenda.

Some who oppose this nomination do so because they seek to continue their losing fight against health insurance reform.  They seek to transform the policy dispute they lost in Congress into a constitutional one that goes against 100 years of law and Supreme Court precedents.   They would turn back the clock by resurrecting long-discredited legal doctrines wisely rejected nearly a century ago. 

In framing their opposition to health insurance reform as a constitutional attack, these critics would also undermine the constitutional basis of laws against child labor and those setting a minimum wage, the Social Security Act, Medicare, the Clean Water Act, the Clean Air Act, and the landmark Civil Rights Acts.  All are constitutional because of Congress’ authority to legislate pursuant to the core powers vested in Congress by Article I, Section 8 of the Constitution, including the General Welfare Clause, the Commerce Clause and the Necessary and Proper Clause.  The radical consequences of their narrow-minded agenda would be to erode Congress’s ability to promote the general Welfare of the American people. 

These critics wish to return to the conservative judicial activism of the early 1900s, a period known by reference to one of its most notorious cases, the 1905 Lochner decision in which the Supreme Court struck down a New York state law protecting the health of bakers by regulating the numbers of hours they could work.  During this period of unbridled conservative judicial activism, the Supreme Court substituted their own views of property for those of the elected branches in order to strike down nearly two hundred laws, including laws outlawing child labor and protecting Americans from sick chickens.  They envisioned their principal role as the defender of business’s profits and the protector of unrestrained ability to form contracts however onerous or one-sided.  The American people suffered.  Their rights went unprotected.  Congress was unable to provide assistance.  That is not a time anyone should want to return to because it is based on artificial legal restraints that shackle the people’s elected representatives in Congress.  

Millions of Americans rely on Social Security, Medicare, unemployment benefits, minimum wage laws and other programs that protect American families in tough economic times.  This radical conservative agenda is a threat to Federal disaster relief, environmental regulations, and even laws responding to the reckless and fraudulent behavior that wrecked the economy.  America’s great safety net for those in need would be left in tatters if this outmoded legal doctrine were to take root.

Ask Americans in the Gulf, those who have lost their jobs in the recession, and those who have lost their homes whether the courts should adopt this radical view of the limits of Congress’ power to help them.  Ask them whether they want to roll back the clock to overturn laws passed by Congress to protect hardworking Americans.  The conservative agenda to restore the Lochner era would leave hardworking Americans without the protections that their lifetimes of hard work have earned them. 

The fact that Elena Kagan will not state that she shares the views of those who opposed helping hardworking Americans obtain access to affordable health care does not mean she is outside of the mainstream.  Far from it.  Congress has woven America’s social safety net over the last three score and 13 years.  Congress’s authority to use its judgment to promote the general welfare cannot now be in doubt.  America and all Americans are the better for it.  Growing old no longer means growing poor.  Being older or poor no longer means being without medical care.  Through Social Security, Medicare and Medicaid, Congress established some of the cornerstones of American economic security.  Comprehensive health insurance reform has now joined them.  Congress has acted within its constitutional authority to legislate for the general welfare of all Americans.  No conservative activist court should overstep the judiciary's role by seeking to turn back the clock and deny a century of progress. 

Those who would corrupt the Constitution by trying to revive the Lochner era are intent on a results-oriented litmus test.  This litmus test would lead them not just to vote against this nomination but also against Senate confirmation of Justice Sandra Day O’Connor, Justice David Souter, Justice John Paul Stevens and Justice Anthony Kennedy—four Justices appointed by conservative Republican Presidents whose nominations I voted to confirm.  Their results-oriented litmus test would require them to reject the vast majority of Justices who have served honorably on the United States Supreme Court.  Indeed, if they were to be consistent, they would have to rethink their support for the current Chief Justice, John Roberts, who testified at his confirmation hearing that during the Lochner era, when the Supreme Court was striking down economic regulations in the late 1800s through the early 1930s, “it’s quite clear that they [were] not interpreting the law, they [were] making the law.”   

We do not need judges or justices to pass a litmus test from the right or the left.  We need judges and justices who will respect the laws passed by Congress and appreciate that adherence to precedence is the foundation of public confidence in our courts.  We need judges and justices who will fairly apply the law and use common sense; judges and justices who appreciate the proper role of the courts in our democracy.  This is the standard I applied when reviewing this nomination and it is the same standard I have applied to every Supreme Court nomination, including the six Justices nominated by Republican Presidents I have supported.  It is a standard I believe Solicitor General Kagan has met.  Solicitor General Kagan not only has the necessary qualifications to be a Supreme Court Justice, but has also demonstrated her respect for the rule of law, her appreciation for the separation of powers, and her understanding of the meaning of our Constitution. 

# # # # #

Press Contact

David Carle: 202-224-3693