08.05.10

Senate Confirms Kagan To Be Associate Justice

WASHINGTON (Thursday, August 5) – The Senate confirmed Elena Kagan to become the 112th Justice of the United States Supreme Court by a bipartisan vote of 63-37.  Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), who presided over the confirmation proceedings on the nomination, made the following statement before the vote.

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

Chairman, Senate Judiciary Committee

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

August 5, 2010

As we conclude the Senate debate on the nomination of Elena Kagan to be an Associate Justice of the United States Supreme Court, I look forward to her bipartisan confirmation.  She has been nominated to succeed Justice John Paul Stevens, someone who served with integrity for so many years, and her qualifications, intelligence, temperament and judgment will make her a worthy successor.  

When she is appointed, three women will serve together on the United States Supreme Court for the first time in our history.  As I said five and a half weeks ago when the Judiciary Committee began Solicitor General Kagan’s confirmation hearing, we are a better country for the fact that the path of excellence Elena Kagan has taken in her career is one now open to both men and women. 

Solicitor General Kagan’s legal qualifications are unassailable.  She earned her place at the top of the legal profession.  As a student, she excelled at Princeton, Oxford and Harvard Law School.  She was a law clerk to a giant in American law, Justice Thurgood Marshall.  She worked for then-Chairman Biden on the Judiciary Committee.  These experiences when combined with her work as an advisor to President Clinton give her background in all three branches of our Government.  She taught law at two of the Nation’s most respected law schools.  In the decade since the Republican Senate majority pocket filibustered her nomination to the D.C Circuit, Elena Kagan became the first woman Dean of Harvard Law School, and then the first woman Solicitor General of the United States, often referred to as the “Tenth Justice.”  

The 100 of us who serve in the United States Senate stand in the shoes of more than 300 million Americans as we discharge this constitutional duty to consider nominations to our nation’s Federal courts.  We will conclude our consideration of this nomination after 12 weeks.  If we can do that for a Supreme Court nomination, we ought to be able to consider the other judicial nominations that have been stalled for months after being favorably reported by the Judiciary Committee.  

This is the 15th nomination to the Supreme Court that I have considered while serving in the Senate.  I have applied the same standards to this nomination as I have to the ones that preceded it.  I looked to see whether Solicitor General Kagan would fairly apply the law and use common sense.  I looked to see whether as a Justice she would appreciate the proper role of the courts in our democracy.  Would she be the kind of independent Justice who would keep faith with each of the words inscribed in Vermont marble over the front doors to the Supreme Court -- “Equal Justice Under Law?”  My answer to these questions based on her record and testimony is a resounding yes.

Solicitor General Kagan demonstrated an impressive knowledge of the law and fidelity to it. She spoke of judicial restraint, her respect for our democratic institutions, and her commitment to the Constitution and the rule of law.  She made clear that she will base her approach to deciding cases on the law and the Constitution, not politics or an ideological agenda.  And so today I will cast my vote for Elena Kagan’s confirmation. 

I observed at the outset of this confirmation process that there was no one President Obama could nominate who would not be opposed by some. Some Senators announced their opposition to Solicitor General Kagan’s nomination before the hearing took place.  The opening statements of others at the Judiciary Committee hearing struck me more like prosecutors’ closing arguments.  Senators who last year disregarded Justice Sotomayor’s years of judicial service to focus on a few phrases taken out of context from her speeches, reversed course this year to proclaim that an extensive judicial record is imperative.  They then faulted Solicitor General Kagan for not having been a judge while ignoring the fact that it was Senate Republicans who pocket filibustered her judicial nomination more than 10 years ago.

Senators can make their own judgments and have.  I would ask of them two things:  Fairly consider Solicitor General Kagan’s testimony and adhere to the standards of fairness and objectivity that you are demanding of her as a Justice.  History will judge whether Senators have fairly considered the nomination of Solicitor General Kagan.  

I commend those Senators who will show the independence to join in the bipartisan confirmation of this nomination. 

I also defend the right of every Senator to vote as he or she chooses.  I understand that some statements made in opposition to this nomination were seen as insulting to the nominee and to others.  I disagreed with many of the inferences, conclusions and judgments expressed in opposition, but I do not think Senators intended their remarks to be disparaging.

Five years ago, I followed the Democratic leader’s statement in opposition to the nomination of John Roberts with my statement in favor of that nomination.  That was my judgment based on the record and his testimony, including his pronouncements on judicial restraint, deference to Congress and respect for precedent.  At that time, the Senator on the Democratic side of the aisle who disagreed with me but, nevertheless, came to my defense, was the then junior Senator from Illinois.  Of course, he now serves as the President of the United States. 

In the course of our consideration of this nomination, I have spoken several times about the key role that real world judging and judicial independence have played in furthering the Constitution’s purpose of forming a more perfect Union.  It is essential that judicial nominees understand that, as judges, they are not members of any administration.  I believe Solicitor General Kagan has that understanding.  Courts are not subsidiaries of any political party or interest group, and our judges should not be partisans.   That is why the Supreme Court’s intervention in the 2000 presidential election in Bush v. Gore was so jarring, and why the recent decision by five conservative activist Justices in Citizens United to throw out 100 years of legal developments in order to invite massive corporate spending on elections was such a jolt to the system.

It is also essential that judges and Justices understand how the law affects Americans each and every day.  I expect that Elena Kagan learned that lesson early in her legal career when she clerked for Justice Marshall.  In the hard cases that come before the Supreme Court in the real world, we want – and need – Justices who have the good sense to appreciate the real-world ramifications of their decisions.  The American people live in a real world of great challenges.  The Supreme Court needs to function in that real world. 

It took a Supreme Court that, in 1954, understood the real world to conclude in Brown v. Board of Education that the seemingly fair-sounding doctrine of “separate but equal” was in reality a straightjacket of inequality and inconsistent with the constitutional guarantee of equality.  It took a Supreme Court 75 years ago that understood the real world and the Great Depression to reject conservative judicial activism and to accept the constitutional authority of Congress to outlaw child labor, guarantee a minimum wage, and establish a social safety net for all Americans.  Through Social Security, Medicare and Medicaid, Congress ensured that growing old no longer means growing poor, and that being older or poor no longer means being without medical care.   That progress continues today, with our efforts to pass laws to ensure protection from natural and man-made disasters, to encourage clean air and water, to provide health care for all Americans, to ensure safe food and drugs, to protect equal rights, to enforce safe workplaces and to provide a safety net for seniors.  

Vermont did not vote to join the Union until the year the Bill of Rights was ratified.  Those of us from the Green Mountain State are protective of our fundamental liberties.  Vermonters understand the importance the Constitution, including the Bill of Rights and the subsequent constitutional amendments have had in expanding individual liberties over the last 220 years. I believe Solicitor General Kagan shares this understanding.  As she said in her opening statement at her hearing: “What the rule of law does is nothing less than to secure for each of us what our Constitution calls ‘the blessings of liberty’ – those rights and freedoms, that promise of equality, that have defined this nation since its founding.”  All of us are better for our historic progress to greater freedom, equality and security. 

Every February the Senate hears President George Washington’s Farewell Address read by the Senate’s most junior member.  In that pronouncement by our first President, George Washington warns against the danger of factions, partisanship and what he called “the spirit of party,” noting:

“[T]he common and continual mischiefs of the spirit of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it.  It serves always to distract the Public Councils, and enfeeble the Public Administration.  It agitates the Community with ill-founded jealousies and public alarms; kinds the animosity of one part against another, foments occasionally riot and insurrection.”

Today our nation faces many challenges.  It is a time when we should be pulling together and working together.  Instead, we have seen too much obstruction, negativity and devotion to the failure of the other party instead of the success of the country. 

The nomination of Solicitor General Elena Kagan is a matter on which I expect the President had hoped we would come together.  Her nomination is one worthy of broad bipartisan support.

With Elena Kagan’s confirmation, the Supreme Court will better reflect the diversity that has made our country great.  We will write another chapter in the history of our Nation’s highest court.  And we will take a significant step forward in fulfilling the hopes and dreams of the trailblazers who set the path for Elena Kagan to follow. 

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