Statement Of Senator Patrick Leahy On The Nomination Of Elena Kagan To Be An Associate Justice Of The Supreme Court (Full Text)


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.  When the President announced his choice on May 10, he talked about her legal mind, her intellect, her record of achievement, her temperament and her fair-mindedness.  Having heard from Solicitor General Kagan at her confirmation hearing five weeks ago, the American people now have a sense of her impressive knowledge of the law and fidelity to it, 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.  She indicated that she will not be the kind of Justice who will substitute her personal preferences, and overrule the efforts of Congress to protect hardworking Americans pursuant to our constitutional role.  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.”

No one can question the intelligence or achievements of this woman.  No one should question her character either.  Elena Kagan was the first woman to be the Dean of the prestigious Harvard Law School and the first woman in our Nation’s history to serve as Solicitor General, a position often referred to as the “Tenth Justice.”   As a student, she excelled at Princeton, Oxford and Harvard Law School.  She worked in private practice and briefly for then-Senator Joe Biden on the Judiciary Committee.  She taught law at two of the Nation’s most respected law schools, and counseled President Clinton on a wide variety of issues.  She clerked for two leading judicial figures, Judge Abner Mikva on the Court of Appeals for the District of Columbia Circuit, and then for Supreme Court Justice Thurgood Marshall, on one of the most extraordinary lawyers in American history.

I have long urged Presidents from both political parties to look outside what I have called “the judicial monastery” and not to feel restricted to considering only Federal appellate judges to fill vacancies on the Supreme Court.  With his second nomination to the Court, President Obama has gone outside the judicial monastery.  When confirmed, she will be the first non-sitting judge to be confirmed to the Supreme Court in almost 40 years, since the appointments of Lewis Powell and William Rehnquist. 

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.  Instead, she became an outstanding law professor, the first woman Dean of Harvard Law School, and the first woman to serve as the Solicitor General of the United States.  Her nomination to the Supreme Court has received the highest possible rating from the American Bar Association’s Standing Committee on the Federal Judiciary.  Her credentials and legal abilities have been extolled by many from across the political spectrum, from Justice O’Connor and Justice Scalia to Michael McConnell, Kenneth Starr and Miguel Estrada.  Like Justices Hugo Black, Robert Jackson, Earl Warren, William Rehnquist and so many others, Solicitor General Kagan’s experience outside the judicial monastery will be valuable to her when she is confirmed.

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 before a court of law.  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 and that it matters in people’s lives.  The Constitution is our protection.  She understands this, as did her mentor, Justice 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 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.  Just as Sir Thomas More reminded his son-in-law in that famous passage from “A Man for All Seasons,” that the law is our protection, Justice Marshall reminded his clerks that the existence of rules and the rule of law is the best protection for all, including the least powerful.  Elena Kagan 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.  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.   When the Supreme Court next convenes, for the first time in our history, three women should be serving together among the nine Justices. 

The stakes at the Nation’s highest court could not be higher.  One need look no further than the Lilly Ledbetter and Diana Levine cases 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 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 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 deciding to override its own precedent and 100 years of legal development in Citizens United.  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 elected representatives of the American people.

I have always championed judicial independence.  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 a traditional view of deference to Congress and judicial precedent.  This is the mainstream view and one once embraced by conservatives.  She indicated that she will not be the kind of Justice who would substitute her personal preferences and overrule congressional efforts to protect hardworking Americans pursuant to our constitutional role.

In fact, it is precisely because of Solicitor General Kagan’s independence that many Republicans have announced their opposition to her nomination.  They oppose her not because she would be a judicial activist as they claim, but rather because she would not overrule Congress as much as they would like.  They do not like the fact she is genuinely committed to judicial restraint rather than enshrining the Republican agenda in the Constitution.

Several of those who have announced their opposition to Solicitor General Kagan do so because they seek to make this nomination a continuation of the fight over health care.  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 oppose Solicitor General Kagan because she will not commit to a narrow and outmoded legal view that would undermine the constitutionality of health insurance reform. 

Congress has enacted and the President has signed into law the landmark Patient Protection and Affordable Care Act.  I believe Congress was right to do so in order to address our health care crisis and ensure that Americans who work hard their entire lives are not robbed of their family's security because health care is too expensive.  We were right to make sure that hard-working Americans do not risk bankruptcy with every illness.  Many Republican Senators disagreed, as is their right, and voted against the law.  But many of those who opposed this law now seek to do in the courts what they could not do by obstruction in Congress.  They are so adamant in seeking this result, that they would turn back the clock by resurrecting long-discredited legal doctrines wisely rejected a nearly a century ago. 

In mounting a constitutional attack on health insurance reform, these critics also seek to 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 the Supreme Court’s time-honored interpretation of these enumerated powers that give Congress the 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 conservative majority on 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 was based on artificial legal restraints that shackle the people’s elected representatives in Congress.   

Progressive opponents of these artificial legal restraints ultimately succeeded, with the support of the American people, in establishing Social Security, minimum wage laws, and anti-discrimination laws to protect the American people.  The programs of the New Deal that helped Americans through the Great Depression would be unconstitutional if radical conservative critics had their way.  Radical conservatives who seek to again impose artificial legal restraints on Congress and the American people would abandon the New Deal programs of the 1930s such as social security and the Great Society programs of the 1960s such as Medicare to the detriment of the American people.  These are the programs that for the last 75 years have helped the United States became a world leader, with the economic security of our citizens leading our economy to grow to lead the world.  

Millions of Americans rely on Social Security, Medicare, unemployment benefits, minimum wage laws and other programs that protect American families in tough economic times such as these.  This is no academic discussion.  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 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.  The fact that some Republican critics opposed health care reform does not make it unconstitutional.   

The Constitution in fact provides a clear basis for Congress’ authority to enact health care insurance reform.  Our Constitution begins with a preamble that sets forth the purposes for which “We the People of the United States” ordained and established it.  Among the purposes set forth by the Founders was that the Constitution was established to “promote the general Welfare.”  It is hard to imagine an issue more fundamental to the general welfare of all Americans than their health. The authority and responsibility for taking actions to further this purpose is vested in Congress by Article I of the Constitution.  As I stated earlier, Article I, Section 8, sets forth several of the core powers of Congress, including the General Welfare Clause, the Commerce Clause and the Necessary and Proper Clause. These clauses form the basis for Congress’s power.

Any serious questions about congressional power to take comprehensive action to build and secure the social safety net have been settled over the past century.  As noted by Tom Schaller, enforcing the individual mandate requirement by a tax penalty is far from unprecedented, despite the claims of critics.  Individuals pay for Social Security and Medicare, for example, by payroll taxes collected under the Federal Insurance Contributions Act, FICA. These FICA payments are typically collected as deductions and noted on Americans' paychecks every month.  Professor Schaller wrote:  “These are the two biggest government-sponsored insurance programs administered by the [Federal Government], and two of the largest line items in the federal budget. These paycheck deductions are not optional, and for all but the self-employed they are taken out immediately.''  The individual mandate requirement in the Patient Protection and Affordable Care Act is hardly revolutionary when viewed against the background of Social Security and Medicare that have long required individual payments.

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.  These developments are all due in part to congressional action.

The Supreme Court settled the debate on the constitutionality of Social Security more than 70 years ago in three 1937 decisions.  In one of those decisions, Helvering v. Davis, Justice Cardozo wrote that the discretion to determine whether a matter impacts the general welfare falls “within the wide range of discretion permitted to the Congress.”  Turning then to the “nation-wide calamity that began in 1929” of unemployment spreading from state to state throughout the Nation, Justice Cardozo wrote of the Social Security Act:  “The hope behind this statute is to save men and women from the rigors of the poor house as well as from the haunting fear that such a lot awaits them when journey's end is near.”  In the Supreme Court’s decision upholding the constitutionality of Social Security, Justice Benjamin Cardozo, one of our greatest jurists, explained that it is the people’s elected representatives in Congress that consider the general welfare of the country and laws to secure it.  He recognized that it was the people’s wisdom as enacted through their representatives that was to be respected, not the personal preference of a small elite group of judges. 

The Supreme Court reached its decisions upholding Social Security after the first Justice Roberts—Justice Owen Roberts-- in the exercise of good judgment and judicial restraint began voting to uphold key New Deal legislation. He was not alone.  It was Chief Justice Hughes who wrote the Supreme Court's opinion in West Coast Hotel v. Parrish upholding minimum wage requirements as reasonable regulation.  The Supreme Court also upheld a Federal farm bankruptcy law, railroad labor legislation, and the Wagner Act on labor relations.  In so doing, the Supreme Court abandoned its judicially-created veto over congressional action with which it disagreed on policy grounds and rightfully deferred to Congress's constitutional authority.

The opponents of health care insurance reform are now opposing the nomination of Elena Kagan and now going to the extreme to attempt to call into question the constitutionality of America's established social safety net.  They would turn back the clock to the hardships of the Great Depression, and thrust modern American back into the conditions of a Charles Dickens novel. That path should be rejected again now, just as it was when Americans confronted great economic challenges more than 70 years ago.  To attempt to strike down principles that have been settled for nearly three-quarters of a century is wrong, damaging to the Nation, and would stand the Constitution on its head.

Due to Republican obstruction, it took an extraordinary majority of 60 Senators, not a simple majority of 51, for the Senate's will to be done.  The fact that Senate Republicans disagree with the effort to help hardworking Americans obtain access to affordable health care does not make it unconstitutional.  As Justice Cardozo wrote for the Supreme Court 73 years ago in upholding Social Security: “[W]hether wisdom or unwisdom resides in the scheme of benefits set forth . . . it is not for us to say.  The answer to such inquiries must come from Congress, not the courts.” Justice Cardozo understood the separation of powers enshrined in the Constitution and the powers entrusted by our Constitution to Congress.  This is true judicial modesty reflecting the understanding of the respective roles of Congress and the courts.  Surely when Congress acts to provide for the general welfare of all Americans it does so pursuant to its constitutional authority.

I believe that Congress was right when it decided that the lack of affordable health care and health insurance and the rising health care costs that burden the American people are problems, “plainly national in area and dimensions.”  Those were the words Justice Cardozo used to describe the widespread crisis of unemployment and insecurity during the Great Depression.  I believe that it was right for Congress to determine that it is in the general welfare of the Nation to ensure that all Americans have access to affordable quality health care. Whether other Senators agree or disagree, I would hope that none would contend that we should turn back the clock to the Great Depression when conservative activist judges prevented Congress from exercising its powers, making its legislative determinations and helping the American people through tough economic times.  Sadly, some are making precisely that argument and contend that this settled meaning of the Constitution should be upended.

The dark days of unbridled conservative judicial activism in which Congress’ hands were tied from outlawing child labor and enacting a minimum wage and social security are long gone and better left behind. The Constitution, Supreme Court precedent, our history and the interests of the American people all stand on the side of Congress's authority to enact health care insurance reform legislation.

Under Article I, Section 8, Congress has the power “to regulate Commerce . . . among the several States.''  Since at least the time of the Great Depression and the New Deal, Congress has been understood and acknowledged by the Supreme Court to have power pursuant to the Commerce Clause to regulate matters with a substantial effect on interstate commerce.  That is consistent with Elena Kagan’s testimony. 

In Solicitor General Kagan’s responses to questions about the Commerce Clause I heard an echo of Justice Cardozo’s explanation for why Social Security is constitutional and of Justice Oliver Wendell Holmes’s famous dissent in Lochner.  In particular, I recall Solicitor General Kagan’s response to a question from Senator Coburn that he later admitted was intended to get her to signal how she would decide a constitutional challenge to health care insurance reform.  He asked Solicitor General Kagan what she thought of a hypothetical law requiring Americans to eat three vegetables a day.  She went on to explain: “I think the question of whether it's a dumb law is different from . . . the question of whether it's constitutional, and . . . I think that courts would be wrong to strike down laws that they think . . .  are senseless just because they're senseless.” 

The Supreme Court long ago upheld laws like the Fair Labor Standards Act against legal challenges, overruling its decision barring Congress from outlawing child labor and establishing basic working conditions such as a minimum wage.  The days when women and children could not be protected are gone.  The time when the public could not be protected from sick chickens infecting them are gone.  The years when farmers could not be protected from market failures or natural disasters are gone.  The era of conservative activist judges voiding regulation that did not guarantee profits to corporations should be gone.  The reach of Congress’s Commerce Clause authority has been long established and well-settled.  Solicitor General Kagan’s answer to Senator Coburn’s question reflects not only this well-settled understanding, but also the understanding of the proper roles of each of the branches that was restored when the Supreme Court rejected the misguided conservative activism of the Lochner era.

Since the great Chief Justice Marshall’s interpretation of the Commerce Clause in 1824, Congress has been understood and acknowledged by the Supreme Court to have the power “to prescribe rules” to govern commerce that “concerns more than one State.”  It was this same understanding that Justice Cardozo followed in upholding the Social Security Act and that Justice Felix Frankfurter later praised as Chief Justice Marshall’s extraordinary achievement of capturing, for all time, the essential meaning of the Commerce Clause.  Pursuant to this understanding of its power under the Commerce Clause, Congress enacted not only Federal disaster relief from the eighteenth century but also the 1964 Civil Rights Act prohibiting racial discrimination by public accommodations and the landmark Clean Air and Clean Water Acts, both of which President Nixon signed into law.  Would conservative activists now argue that these acts, the Civil Rights Act, the Clean Air Act and the Clean Water Act, should suddenly be declared unconstitutional as beyond Congress’s power?  

Even recent decisions by a Supreme Court dominated by Republican-appointed justices have affirmed this rule of law. In 2005, the Supreme Court ruled in Gonzales v. Raich that Congress had the power under the Commerce Clause to prohibit the use of medical marijuana.  This was upheld even though the marijuana was grown and consumed at home.  It was upheld on the same rationale as Wickard v. Filburn in 1942, because of its impact on the national market for marijuana.  Yet Republican Senators and conservative ideologues contend that Wickard should be discarded.  Would they also demand that Federal laws against drugs be declared unconstitutional?

Justice Anthony Kennedy and Justice Sandra O’Connor, both conservative Justices appointed by Republican Presidents, astutely noted in their 1995 concurrence in United States v. Lopez

“[T]the Court as an institution and the legal system as a whole have an immense stake in the stability of our Commerce Clause jurisprudence as it has evolved to this point.  [That] fundamental restraint on our power forecloses us from reverting to an understanding of commerce that would serve only an 18th-century economy . . . and mandates against returning to the time when congressional authority to regulate undoubted commercial activities was limited by a judicial determination that those matters had an insufficient connection to an interstate system.”

They are right as a matter of law and right when it comes to the interests of the American people.

The Constitution also provides in Article I, Section 8, that Congress has the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by his Constitution in the United States.”  The Supreme Court settled the meaning of the Necessary and Proper Clause almost 200 years ago in Justice Marshall's landmark decision for the Supreme Court in McCullough v. Maryland, during the dispute over the National Bank.  Justice Marshall's wrote that “the clause is placed among the powers of Congress, not among the limitations on those powers.'' He continued: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.”   He concluded by declaring, in accordance with a proper understanding of the  Necessary and Proper Clause, that Congress should not be deprived “of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to human affairs” by judicial fiat.  Chief Justice Marshall understood the Constitution, knew its text and knew the Framers.  He rejected the constraints on Congress that conservative activists now propose in order to empower conservative judicial activism.

The Necessary and Proper Clause goes hand in hand with the Commerce Clause to ensure congressional authority to regulate activity with economic impact. Just this year the Supreme Court upheld provisions of the Adam Walsh Child Protection and Safety Act, a law we passed to allow for the civil commitment of sexually-dangerous Federal prisoners, which was based on the Commerce Clause and the Necessary and Proper Clause of the Constitution.  As Justice Breyer wrote for seven Justices, including Chief Justice Roberts: “[T]he Necessary and Proper Clause makes clear that the Constitution’s grants of specific federal legislative authority are accompanied by broad power to enact laws that are ‘convenient, or useful’ or ‘conducive’ to the authority’s ‘beneficial exercise.’”  Congress passes laws like the Adam Walsh Act every year to protect the American people.  Would those who want to redraft and limit the Constitution really want to declare the Adam Walsh Act and its provisions against pedophiles unconstitutional?

Solicitor General Kagan’s testimony shows that she both understands and recognizes, in accordance with the longstanding judgments of both Congress and the Supreme Court, that Congress’ power to legislate under the Commerce Clause power and the Necessary and Proper Clause is broad but not unlimited.  Indeed, she agreed with the Senator from Texas that the Supreme Court’s decisions in Lopez and Morrison limit Congress’ power to legislate “when the activity that’s being regulated is not itself economic in nature and is activity that’s traditionally been regulated by the States.”  But, she noted that “to the extent that Congress regulates the channels of commerce, the instrumentalities of commerce, and . . . things that substantially affect interstate commerce, there the Court has given Congress broad discretion.”  She is right as a matter of law.  The American people are able to act through their elected representatives in Congress to secure the blessings of liberty because of this meaning of our Constitution.

Through Social Security, Medicare and Medicaid, Congress established some of the cornerstones of American economic security. Comprehensive health care 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, on any level, 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 now not just to vote against the confirmation of Justice Thurgood Marshall as they have said, 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.   It is not just Chief Justice Earl Warren, and Justice William Brennan and Justice Thurgood Marshall whose jurisprudence they are rejecting.  Their results-oriented litmus test would have been rejected by the vast majority of Justices who have served honorably on the United States Supreme Court, including the great Chief Justice John Marshall himself, Justice Benjamin Cardozo, Justice Oliver Wendell Homes, Jr., Justice Harlan Fiske Stone, and Justice Charles Evans Hughes.  I assume they would, as well, reject the greatest judge not to have been appointed to the Supreme Court, the Second Circuit’s Judge Learned Hand, because he had been an outspoken critic of the so-called economic due process doctrine that allowed activist conservatives to substitute their views for those of Congress. Indeed, if they were to be consistent, they would have to rethink their support for the current Chief Justice, John Roberts, who testified during 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.”   The demand by critics that Solicitor General Kagan adhere to legal views that would put her at odds with so many great Justices as the price of their vote is a strong reminder of how far many are seeking to stray from basic constitutional principles and traditions.  

We do not need judges or justices would 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 will appreciate the proper role of the courts in our democracy and make decisions in light of the fundamental purposes of the law.  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 and the three nominated by Democratic Presidents.  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.  Some may not want our country to move forward, to make progress, to move toward a more perfect union.  But 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.   

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