05.25.10

Statement On The Nomination Of Elena Kagan To The Supreme Court Of The United States

As Prepared For Delivery On The Senate Floor

Two weeks ago, President Obama nominated Elena Kagan to succeed Justice John Paul Stevens as Associate Justice of the Supreme Court of the United States.  Much has been written and said about this nomination during the last two weeks, and more will be said over the next month, as we prepare for the Judiciary Committee’s hearing, which will begin on June 28.  So far, there has been too much talk about process and too much partisanship surrounding this important matter.  Among the most serious constitutional duties entrusted to the Senate is the confirmation of Supreme Court Justices.  So let us refocus on the qualifications of this extraordinary nominee.

When the President announced his choice back on May 10, he talked about Solicitor General Kagan’s legal mind, her intellect, her record of achievement, her temperament and her fair-mindedness.  No one can question the intelligence or the achievements of this woman.  Elena Kagan is at the top of the legal profession and no stranger to breaking glass ceilings.  She was the first woman to be the Dean of the prestigious Harvard Law School.  It was from Harvard Law School that she earned her law degree magna cum laude.  Previously, she earned a degree from Oxford University and graduated summa cum laude from Princeton University.  She clerked for two leading judicial figures, Judge Abner Mikva on the Court of Appeals for the District of Columbia Circuit, and then on the Supreme Court for one of the most extraordinary lawyers and judges in American history, Justice Thurgood Marshall.

As an advocate, Thurgood Marshall helped change America for the better by bringing cases that challenged racial discrimination.  He won an extraordinary 29 of the 32 cases he argued before the Court – one of the most outstanding records of advocacy before the Court, including the landmark case of Brown v. Board of Education, which helped bring an end to racial segregation in education.  He used his prodigious talents to fortify individual liberty and equality in accordance with the guarantees in our founding charter, the Constitution of the United States.  

Despite his obvious legal qualifications, when Thurgood Marshall was nominated to the Second Circuit Court of Appeals by President Kennedy in 1961, his nomination was stalled by opponents in the Senate before he was eventually confirmed by a bipartisan vote of 54-16.  He gave up that lifetime appointment when called upon by President Johnson to serve as Solicitor General of the United States, the top legal advocate for the United States.  Now, 40 years later, it is Elena Kagan who is serving as the Solicitor General of the United States, the first woman to do so.

Two score and three years ago, President Johnson nominated Thurgood Marshall to be the first African American to serve on the United States Supreme Court.  President Johnson said that it was “the right thing to do, the right time to do it, the right man and the right place.” President Johnson was right, and that nomination helped move the country forward. The nomination was confirmed by a bipartisan Senate vote of 69-11.   

The American people have now elected our first African-American President, a leader who is committed to the Constitution and rule of law.  With his first 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 fourth woman in the Court’s history, a nominee who when confirmed will bring the Court to a new high water mark of three women serving as Justices.  Yet Senate Republicans seem to want to shift the standard from when the Senate was considering President Bush’s nominees to the Supreme Court – John Roberts and Samuel Alito – and to apply a new standard to President Obama’s nomination of Elena Kagan.

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 as potential Supreme Court nominees.  With his second nomination to the Court, President Obama has gone outside the judicial monastery.  When confirmed, Elena Kagan will be the only member of the Supreme Court who did not serve as a Federal appeals court judge.  When confirmed, she will be the first non-sitting federal judge to be confirmed to the Supreme Court in almost 30 years, since the appointment of Justice Sandra Day O’Connor. 

When the President introduced Elena Kagan to the country, I was interested to hear him talk about her learning from Justice Marshall that “behind law, there are stories – stories of people’s lives as shaped by the law, stories of people’s lives as might be changed by the law.”  He said that her understanding of law is not merely intellectual – or ideological—but of how it affects the lives of people. 

We heard Solicitor General Kagan earlier this month talk about the importance of upholding the rule of law and enabling all Americans to get 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 and matters in people’s lives. The Constitution is our protection.   

Since her nomination, Solicitor General Kagan has met with dozens of Senators.  I understand she will conclude her meetings with the Senators serving on the Judiciary Committee in the coming weeks.  We have each had a chance to meet with her, speak with her, ask her questions, and learn more about her.  At our Judiciary Committee hearing next month, the American people will have the chance to see her, hear her, and get to know her.

Fourteen months ago, the Senate considered Elena Kagan’s impressive legal credentials when we confirmed her in a bipartisan vote to be the Solicitor General of the United States, the Nation’s top lawyer.  The person filling that vital post is informally referred to as the “tenth Justice,” because the Solicitor General works so closely on significant cases before the Supreme Court.  Solicitor General Kagan has now argued a broad range of issues, including her successful defense of Congress’ ability to protect children from pedophiles.    

With this nomination, Elena Kagan follows in the footsteps of her mentor, Thurgood 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, just as she did when she became the first woman to serve as dean of Harvard Law School.  These are historic accomplishments.  As Dean, Elena Kagan worked well with all ideological components of the faculty at Harvard, took action to bring more conservative viewpoints to the institution, and encouraged civil discourse.  Those are skills that will be useful on what often appears to be a sharply divided Supreme Court. 

Having counseled the President to look outside the judicial monastery, I was struck that the first wave of attacks by Senate Republicans to this nomination was that she lacked judicial experience.  It ignored Senate Republicans’ own recent statements praising President Bush’s nomination of Harriet Miers for being someone who had not served a judge, calling her a “wonderful choice” who would “fill very important gaps in the Supreme Court.”  Now that a Democratic President is nominating, they reverse themselves to contend that lack of judicial experience is a matter for “concern,” is “troubling,” and a matter that “warrants great scrutiny.”  Again, Senate Republicans are moving the goal posts, and shifting the standard from when the Senate considered the Roberts and Alito nominations.  Republicans should not apply a double standard to the nomination of this qualified woman.

Of course this Republican criticism ignores another key fact: They are themselves responsible for her lack of judicial experience.  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.

Republican Senate leadership staff was recently quoted as admitting that these early attacks on Solicitor General Kagan’s experience were really just a ploy in what they view as a partisan game.  “‘The lack of experience isn’t the put-away shot,’ the aide said.  ‘It’s the door we use to get into her record.’”  (Roll Call, May 12, 2010)  I wish Senate Republicans would not approach our constitutional responsibilities with respect to judicial confirmations as a partisan game.  

This feigned criticism of her as somehow unqualified because she lacks judicial experience is also ignorant of our history and constitutional government.  It is very recently that the path to the Supreme Court has become so narrow.  Indeed, nearly half of our Supreme Court Justices over time were nominated to the Court from a position other than a judgeship.  Fifty-four of our 110 Supreme Court Justices were not serving as judges when nominated.  Forty-one justices had no judicial experience at all.  Among the distinguished justices without prior judicial experience were Chief Justice John Marshall, Justice Louis Brandeis, Justice Felix Frankfurter, Justice Byron White, Justice Robert Jackson and Justice William Rehnquist.

Chastened after having been reminded of their recent support for President Bush’s nomination of Harriet Miers, who had not been a judge, Senate Republicans abandoned this poll-driven line of attack.  They are now trying a different tack.  They contend that the President should not be nominating someone who has served in the Government or his administration. 

Of course, Senate Republicans did not voice any such concern before the American people elected President Obama.  The most obvious example is, again, that of President Bush’s nomination of Harriet Miers.  Senate Republicans did not object to Ms. Miers’ nomination because she had served in the Government or because she was serving as Counsel to the President.  They did not object that she was too close to the President and could not be independent.  To the contrary, they objected and joined with extreme right wing activists to force the President to withdraw that nomination because they feared they could not count on her enough.  She did not pass their ideological litmus test.  They could not be certain how she would vote and whether she would carry out their judicial agenda.

Nor did Senate Republicans express any concern when President Bush made other nominations to the Federal courts from his close advisors and team.  Senate Republicans supported his nominations of Brett Kavanaugh, who was serving as his cabinet secretary, Jim Haynes, the loyal general counsel of the Defense Department, and Jay Bybee from his Office of Legal Counsel.  The issue I raised in connection with the nomination of Alberto Gonzales to be Attorney General was his unfettered loyalty to President Bush and his lack of independence.  No Republican joined in my concern then, but most soon after had to acknowledge that many of us had been right when we investigated White House influence in the firing of U.S. Attorneys for political reasons.  I hope that Senate Republicans will not apply a new standard to Elena Kagan’s nomination that was not applied when the Senate considered the nominations of those men.

Unlike the Republican critics, I have always championed judicial independence.  I think it is important the 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 tried to do in Citizens United, the Supreme Court’s recent narrow decision in which five Justices opened the door for massive corporate spending on elections.  That is why the Supreme Court’s intervention in the 2000 presidential election in Bush v. Gore was so jarring and wrong.

I welcome questions to Solicitor General Kagan about judicial independence, but let us be fair.  Let us listen to her answers.  There are those on the extreme right who are spoiling for a fight.  The overheated rhetoric ought to be set aside.  Their name-calling should be condemned.  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. 

Thurgood Marshall was the Solicitor General of the United States when President Johnson nominated him to the Supreme Court.  Does anyone think Justice Marshall lacked independence?  Earl Warren had been designated to be Solicitor General when President Eisenhower nominated him to be Chief Justice.  Does anyone contend that Chief Justice Warren lacked independence?  Robert Jackson was serving as Attorney General when President Franklin Roosevelt nominated him.  Does anyone contend that Justice Jackson lacked independence?  Justice Byron White was serving as the Deputy Attorney General when President Kennedy nominated him.  Does anyone contend that Justice White lacked independence?  And, of course, John Marshall was serving as Secretary of State when President Adams nominated him to be Chief Justice.  Does anyone contend that Chief Justice Marshall, the person who established the principal of judicial review, lacked independence?  Chief Justice Roberts, Justice Alito and Justice Scalia all had significant experience working in the Justice Department but no Republican questioned their independence.  In fact, Solicitor General Kagan is the 19th Supreme Court nominee to be named directly from a significant Executive Branch position.  

Before someone questions the independence of this nominee, they should have a basis.  I know of none.  No one should presume that this intelligent woman who has excelled during every part of her varied and distinguished career lacks independence.  I know of no basis for such a contention.

Our constituents deserve a civil and thoughtful consideration of the nomination of Elena Kagan.  She may not agree with any of us on everything, but she is certainly well within the mainstream of legal and constitutional thought.  Just last year, a bipartisan majority in the Senate thought so when we confirmed her to serve as the Solicitor General of the United States.

I look forward to the Judiciary Committee hearing.  That is when Solicitor General Kagan will finally be given the opportunity to answer questions and will, based on all I know about her, give the American people and open-minded Senators confidence in her legal knowledge and abilities.  I expect that after reviewing her record and hearing from her during the Judiciary Committee’s hearing, Senators on both sides of the aisle and the American people will conclude that the President has nominated an outstanding future Justice.


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