06.21.10

Statement On The Nomination Of Elena Kagan To The Supreme Court

Full Statement, As Prepared For Delivery

As I announced last month, the confirmation hearing on the President’s nomination of Elena Kagan to be an Associate Justice of the Supreme Court will begin next Monday.  On Monday, I will give each Senator who is a member of the Committee an opportunity to deliver an opening statement.  After the nominee is presented to the Committee, she will proceed with her opening statement.  On Tuesday morning we will ask questions of the nominee.  I hope that we will conclude the hearing by the end of the week, including testimony from a few public witnesses, as has become our custom.

Over the last few weeks, I have come to the Senate floor to outline the qualifications and achievements of the nominee, and to comment on the attacks that have been launched against her.  I have noted my disappointment that too many Republican Senators seem predisposed to oppose the nomination.

When he set out to find a well-qualified nominee to replace retiring Justice John Paul Stevens, the President said this:  “I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook.  It’s also about how laws affect the daily realities of people’s lives – whether they can make a living and care for their families, whether they feel safe in their homes and welcome in our nation.”  In introducing Solicitor General Kagan as his Supreme Court nominee, President Obama 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.”

President Obama is not alone in recognizing the value of judges and justices who are aware that their duties require them to understand how the law works, and the effects it has in the real world.  Within the last month, two Republican appointees to the Supreme Court have made the same point.  Last month, Justice Anthony Kennedy told a joint meeting of the Palm Beach and Palm Beach County Bar Associations that, as a Justice: “You certainly can’t formulate principles without being aware of where those principles will take you, what their consequences will be.  Law is a human exercise and if it ceases to be that it does not deserve the name law.” 

In addition, Justice David Souter, who retired and was succeeded by Justice Sotomayor last year, delivered a thoughtful commencement address at Harvard University.  He spoke about judging and explained why thoughtful judging requires consideration of human experience and grappling with the complexity of constitutional questions in a way that takes the entire Constitution into account.  He spoke about the need to “keep the constitutional promises our nation has made.” Justice Souter concluded: 

“If we cannot share every intellectual assumption that formed the minds of those who framed that charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people.”    

Justice Souter understood the real-world impact of the Supreme Court’s decisions, as does, I believe, his successor Justice Sotomayor.   Across a range of fields including bankruptcy, the Fourth Amendment, statutory construction, and campaign finance, Justice Sotomayor has written and joined opinions that have paid close attention to the significance of the facts in the record, to the considered and longstanding judgments of the Congress, to the arguments on each side, to the Supreme Court’s precedents, and to the real-world ramifications of the Supreme Court’s decisions.  She has voted to keep the courthouse doors open in important employment discrimination and pension rights cases.  

A hallmark of real-world judging is acknowledging the challenges of construing the Constitution’s broad language given our social and technological developments.  I am talking about getting away from sloganeering and being concrete.  I appreciate Justices like Justice John Paul Stevens, Justice David Souter and Justice Sandra Day O’Connor who are grounded, who draw on the lessons of experience and use common sense.  In the real world of judging, there are complex cases with no easy answers.  In some, as Justice Souter pointed out, different aspects of the Constitution point in different directions, toward different results, and need to be reconciled.

This approach to judging is not only mainstream, it is as old as the Constitution itself and has been evident throughout American history.   Chief Justice John Marshall wrote for a unanimous Supreme Court in the 1819 landmark case of McCulloch v. Maryland that for the Constitution to contain detailed delineation of its meaning “would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind.”  He understood, as someone who served with Washington, Jefferson, Adams and Madison, that its terms provide “only its great outlines” and that its application in various circumstances would need to be deduced.  The “necessary and proper” clause of the Constitution entrusts to Congress the legislative power “to make all laws which shall be necessary and proper for carrying into execution” the enumerated legislative powers of Article I, Section 8, of our Constitution as well as “all other powers vested by this Constitution in the Government of the United States.” In construing it, Chief Justice Marshall explained that expansion clause “is in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”  He went on to declare how, in accordance with a proper understanding of the “necessary and proper” clause and the Constitution, Congress should not by judicial fiat 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 stagnant construction of the Constitution.

McCulloch v. Maryland was the Supreme Court’s first construction of the “necessary and proper” clause.  The most recent was just last month in United States v. Comstock.  That case upheld the power of Congress to enact the Adam Walsh Child Protection and Safety Act, which included provisions authorizing civil commitment of sexually-dangerous Federal prisoners who had engaged in sexually violent conduct or child molestation and were mentally ill.  Quoting Chief Justice Marshall’s language from McCullough, Justice Breyer wrote in an opinion joined by a majority of the Supreme Court, including Chief Justice Roberts, about the “foresight” of the Framers who drafted a Constitution capable of resilience and adaptable to new developments and conditions. 

Justice Breyer’s judicial philosophy is well known.  A few years ago, he authored Active Liberty in which he discussed how the Constitution and constitutional decision-making protects our freedoms and, in particular, the role of the American people in our democratic government.  When he writes about how our constitutional values applying to new subjects “with which the framers were not familiar,” he looks to be faithful to the purposes of the Constitution and the consequences of various decisions. 

During the Civil War, in the 1863 Prize Cases decision, the Supreme Court upheld the constitutionality of President Lincoln’s decision to blockade southern ports before a formal congressional declaration of war against the Confederacy.  Justice Grier explained that it was no less a war because it was a rebellion against the lawful authority of the United States.  Noting that Great Britain and other European nations had declared their neutrality in the conflict, he wrote that the Court should not be asked “to affect a technical ignorance of the existence of a war, which all the world acknowledges to be the greatest civil war known in the history of the human race.”  That, too, was real-world judging.

In the same way, the Supreme Court decided more recently in Rasul v. Bush, that there was jurisdiction to decide claim under the Great Writ securing our freedom, the writ of  habeas corpus, from those in U.S. custody being held in Guantanamo.  Justice Stevens, a veteran of World War II, engaged in real-world judging, recognizing that the United States exercised full and exclusive authority at Guantanamo if not ultimate, territorial sovereignty.   The ploy by which the Bush administration had attempted to circumvent all judicial review of its actions was rejected recognizing that ours is a government of checks and balances.

Examples of real-world judging abound in the Supreme Court’s decisions upholding our individual freedoms.  For example, the First Amendment expressly protects freedom of speech and the press, but the Court has applied it, without controversy, to television, radio broadcasting, and the Internet.  Our privacy protection from the Fourth Amendment has been tested but survived the invention of the telephone and institution of Government wiretapping 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.

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 recalling 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 [Fourth] 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.

That was real-world judging that helped end a discriminatory – and dark – chapter in our history.  The Supreme Court did not limit itself to Constitution as 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.  It took into account not only the Civil War, but the Civil War Amendments to the Constitution adopted between 1865 and 1870. 

Would anyone today, even Justice Scalia, really read the Eighth Amendment’s limitation against cruel and unusual punishment to allow the cutting off of ears that was practiced in colonial times?  Of course not, because the standard of what is cruel and unusual punishment was not frozen for all time in 1788. Does anyone dispute today that the fundamental rights set forth in the Bill of Rights are correctly applied to the States through the Due Process Clause of the Fourteenth Amendment?  Literally, the freedoms in our Bill of Rights 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 drafter had in mind when it was adopted. 

Our Constitution was written before Americans had ventured into outer space, or cyberspace.  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.  The Constitution mentions our “armed forces” but there was no air force when the Constitution was written.  Similarly, in construing the “commerce clause” and the intellectual property provisions to provide copyright and patent protection for “writings and discoveries,” the Supreme Court has engaged in real-world judging as it applies our constitutional principles to the inventions, creations and conditions of the 21st century.  Jefferson and Madison may have mastered the quill pen, but never envisioned modern computers. 

There are unfortunately occasions on which the current conservative, sometimes activist, majority on the Supreme Court did not engage in real-world judging.  One such case, the Lilly Ledbetter case, would have perpetuated unequal pay for women, by using a rigid, results-oriented, cramped reading of a statute to defy congressional intent.  We corrected that case by statute.  Similarly, the Gross decision seeks to close our courts to those treated unfairly.  The legislature must correct it.  And, of course, the Citizens United case wrongly reversed 100 years of legal developments to unleash corporate influence in elections.

We saw yet another troubling example in a narrow 5-4 decision handed down earlier today in a case called Rent-A-Center v. Jackson, in which the conservative activists in the majority, once again, have ruled in favor of big business at the expense of hardworking Americans.  With this narrow decision, the five Justices in the majority have overridden the intent of Congress in passing the Federal Arbitration Act and abandoned our longstanding tradition of allowing people to go to court to challenge unconscionable agreements.  Just as it was in the wake of the Ledbetter case, it will be up to Congress to correct this error and undo the damage it has done to thousands of people who have no choice but to sign unfair agreements in order to get a job and put food on their table for their families.    

The issue before the Court was whether a court or an arbitrator should decide the enforceability of an agreement to settle disputes that may arise.  Justice Stevens, writing for the four dissenting Justices noted that the question whether a legally-binding arbitration agreement existed is an issue that the Federal Arbitration Act assigns to the courts.  Congress did not intend to prevent employers from having access to an impartial court’s determination whether the agreement was unconscionable.  Today’s ruling turns that purpose, and even the Court’s own precedent, upside down. 

It is estimated that more than one hundred million Americans work under binding mandatory arbitration agreements.  Most Americans are not even aware that according to the new Supreme Court ruling, they will have waived their constitutional rights to a jury trial when they accept a job to provide for their families.  This divisive decision not only closes the courthouse doors to millions of American workers and their families, it gives big business even more incentive to require their employees to sign one-sided arbitration agreements as a condition of employment. 

Considering how the law will work in the real world is an indispensable part of a judge’s responsibility.  I expect that Elena Kagan learned that lesson early in her legal career when she clerked for Justice Marshall.  In 1993, upon the death of Justice Thurgood Marshall, she observed: “Above all, he had the great lawyer’s talent . . . for pinpointing a case’s critical fact or core issue.  That trait, I think, resulted from his understanding of the pragmatic – of the way in which the law acted on people’s lives.”

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 have criticized 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 Sandra Day O’Connor, Souter and Stevens.

I have always thought that a nominee’s judicial philosophy was important.  Nearly 25 years ago, I noted in an earlier hearing for a Supreme Court nominee:  “There can hardly be an issue closer to the heart of the Senate’s role than a full and public exposition of the nominee’s approach to the Constitution and to the role of the courts in discerning and enforcing its commands.  That is what I mean by judicial philosophy.” 

It is only recently that some Republican Senators conceded that judicial philosophy matters.  I hope this means that they will abandon the false premise that all a Justice does is mechanically apply obvious legal dictates to reach preordained outcomes.  There is more to serving the country as a Supreme Court Justice.  A Supreme Court Justice needs to exercise judgment, should appreciate for the proper role of the courts in our democracy, and should consider the consequences of decisions on the fundamental purposes of the law and in the lives of Americans—in other words, engage in real-world judging. 

I intend to ask the nominee about her judicial philosophy and about real-world judging.  That is what I have done through the course of a dozen Supreme Court nominations hearings.  Real-world judging is an important part of American constitutional life.

As I have said, 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 Justices 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. 

What others seem to want is assurance that a nominee for 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.  Lack of such assurances was why they 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 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.  It is the kind of conservative activism we saw when the Supreme Court in Ledbetter disregarded the plain language and purpose of Title VII.  It is the kind of activism we saw when, this past January, a conservative activist majority turned its back on the Supreme Courts own precedents, the considered judgment of Congress, the interests of the American people and our long history of limiting corporate influence in elections in their Citizens United decision.  

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 do 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 every side, to the particular language and purposes of the statutes they are charged with interpreting, to their own precedents, to the traditions and longstanding historical practices of this Nation, and to 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.

The resilience of the Constitution is that its great concepts and phrases are not self-executing.  They involve constitutional values that 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 hard-working 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.

A year ago, most Republican Senators opposed the nomination of Justice Sotomayor to the Supreme Court, in spite of her outstanding record for more than 17 years as a Federal district and court of appeals judge.  Most Republican Senators opposed Justice Sotomayor’s nomination not because she lacked the requisite professional qualifications or because there were issues about her character or integrity.  Her record was impeccable.  Sadly, the complaints about both Justice Sotomayor and now being echoed in opposition to Solicitor General Kagan are based on the two nominees’ unwillingness to promise to deliver results that align with a narrow political ideology. 

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 the law and real-world ramifications of their decisions.   I have urged Republican and Democratic Presidents to nominate people from outside the judicial monastery because I think real-world experience is helpful and because I know that real-world judging matters in the lives of the American people.  The American people live in a real world of great challenges.  We have a guiding charter that provides great promise.  At the end of the day, the Supreme Court functions in the real world that affects all Americans.  Judicial nominees need to appreciate that simple, undeniable fact.

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