[Pages S6703-S6715]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

Lima Company Battalion, 25th Marines

Mr. BROWN of Ohio. Mr. President, I rise today to honor some 30
members of the Armed Forces who were killed in action serving our
country. Five years ago this week, 19 marines from the 3rd Battalion,
25th Marine Regiment lost their lives while serving in Iraq. It was one
of the most catastrophic IED attacks on our forces up until that time
in the war. Eleven of those marines were from the Lima Company, an
Infantry Reserve company with marines from Cincinnati, Chillicothe,
Tallmage, Willoughby, Delaware, and Grove City, OH.
Headquartered in Brook Part, OH, the 3rd Battalion, 25th Marine
Regiment, known as the 3/25, deployed to Iraq on February 28, 2005.
Upon arriving in Iraq, they were indispensable. They trained Iraqi
security forces. They conducted critical stability and security
operations in and around the cities of Iraq's Al Anbar Province.
From May to August of that year, 5 years ago, they tracked down
insurgents, disrupted enemy transportation routes, and seized weapons
caches.
They participated in Operation Matador to eliminate an insurgent
sanctuary north of the Euphrates River. In doing so, they disrupted a
major insurgent smuggling route and gained valuable intelligence.
During Operation New Market, the Lima Company of 3/25 swept a hostile
area near Haditha, Iraq.
In June of 2005, during Operation Spear, they helped clear the city
of Karabila and recovered Iraqi hostages and destroyed several weapons
caches.
From August 1 to 3, 2005, the Lima Company participated in the Battle
of Haditha, a code-named Operation Quick Strike. This operation was
launched after a marine unit of the 3/25 was attacked and killed by a
large group of insurgents on August 1, 2005.
On August 3, 2005, the 3/25 were en route to the initial attack when
their amphibious assault vehicle hit a pair of double-stacked antitank
mines. The vehicle was completely destroyed in the explosion, and 15 of
the 16 marines inside the vehicle died. All of the marines killed were
assigned to the 3/25; 11 belonged to the Lima Company. At the time, the
Lima Company was one of the hardest hit marine units in the war. In the
span of 72 hours--from August 1 to August 3, 2005--19 marines with the
3/25 were killed by insurgents or insurgent-made IEDs.
Yet in the wake of losing their fellow marines, the Lima Company
continued to carry out their mission to disrupt the militant presence
in the surrounding areas.
Returning from Iraq, the Lima Company was welcomed by family members,
friends, and communities. Many families, however, tragically were
unable to welcome home their son, husband, father, or loved one.
Over the course of their 7-month deployment, the marines of the 3/25
participated in 15 regimental and battalion operations; 33 of them were
killed in action.
We should again honor these heroes. I have met the families of many
of these men--they were all men--many of these marines who were killed
in action. I spent time talking with many of them about their sons or
their husbands or their fathers or their loved ones.
Five years after the Lima Company's single greatest loss, we remember
the marines who lost their lives early in those days of August 2005. I
wish to share the names with my colleagues in the Senate:
Cpl Jeffrey A. Boskovitch, 25, of Seven Hills, OH;
Sgt David Coullard, 32, of Glastonbury, CT;
LCpl Daniel Deyarmin, Jr. 22, of Tallmadge, OH;
LCpl Brian Montgomery, 26, of Willoughby, OH;
Sgt Nathaniel Rock, 26, of Toronto, OH;
LCpl Christopher Jenkins Dyer, 19, of Cincinnati, OH;
LCpl William Brett Wightman, 22, of Sabina, OH;
LCpl Edward August ``Augie'' Schroeder II, 23, of Columbus, OH. His
parents live in Cleveland.
LCpl Aaron Reed, 21, of Chillicothe, OH;
Cpl David Stewart, 24, of Bogalusa, LA;
Cpl David Kenneth Kreuter, 26, of Cincinnati, OH;
Sgt Justin Hoffman, 27, of Delaware, OH;
LCpl Eric Bernholtz, 23, of Grove City, OH;
LCpl Timothy Bell, Jr., 22, of West Chester, OH;
LCpl Michael Cifuentes, 25, of Fairfield, OH.
The families and communities of the Lima Company, 3rd Battalion, 25th
Marine Corps Regiment have since banded together to immortalize the
lives of their fallen heroes.
Two years ago, a set of eight life-size paintings was unveiled at the
Ohio Statehouse in Columbus, with each marine's boots and an eternal
flame placed below his likeness. The memorial is currently on display
at the Museum of the Marine Corps just outside Washington, DC, in
Quantico, VA. These men are remembered and they are honored through a
standing granite memorial at Lima Company's headquarters at
Rickenbacker Air National Guard Base just outside of Columbus.
Most notably, these fallen men are immortalized in the hearts, minds,
and lives of their families and fellow marines.
When I talk still with family members, they are so interested in our
continuing to memorialize and remember in our hearts and our minds and
in public displays, such as this when possible, the sacrifice of their
relatives.
Today we remember and we honor these courageous men. Their sacrifice
has not gone unnoticed by the people of a proud State and a grateful
nation.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. SESSIONS. Mr. President, I thank Senator Brown for his important
comments, and I join him in expressing my sympathy for their loss and
my appreciation of the courage and dedication of our men and women in
uniform.
I rise to speak of my concerns over Ms. Elena Kagan's refusal as
Solicitor General of the United States to defend Federal laws--laws
with which she clearly did not agree and with which her President,
President Obama, did not agree. Her handling of this matter alone, in
my opinion, as one who spent 15 years in the Department of Justice, who
loves the Department of Justice, who believes in the rule of law in
America, is a disqualifying act by her and should disqualify her from
serving on the Supreme Court.
I laid out my concerns at her confirmation hearings and asked her to
respond. I gave her at the hearing almost 10 minutes to do so. It was
the only time I noticed she actually used notes. Her explanation was
not satisfactory.
It is well known by anyone who followed the process that Ms. Kagan
has personally opposed the don't ask, don't tell law--a law passed by a
Democratic Congress and signed into law by President Clinton. It was
not merely a military policy but a Federal law. She served 5 years in
the administration of President Clinton in the White House. I am not
aware that she ever protested to him about signing that law.
The law says, in effect, that openly homosexual persons may not serve
in the U.S. military--don't ask, don't tell. Ms. Kagan was a fierce
critic of that law when she was dean of Harvard Law

[[Page S6704]]

School. She justified her decision while at Harvard to ban military
recruiters from the campus Career Services Office--in clear defiance of
subsequent Federal law, the Solomon Amendment--on the basis of her
opposition to don't ask, don't tell. The Congress passed four separate
Solomon Amendments to make sure people such as Dean Kagan were not
treating our military on campus as second-class citizens, which is how
they were being treated.
She argued while at Harvard that don't ask, don't tell was a ``moral
injustice of the first order.'' I accept that as her opinion. I do not
agree with it, but I accept that as a legitimate opinion. But I do not
accept her actions blocking military recruiting as legitimate.
Given her strong personal opposition to don't ask, don't tell, she
was specifically asked when she appeared before the Senate Judiciary
Committee on her nomination to be Solicitor General of the United
States--the position in the Department of Justice that defends Federal
law before the Supreme Court of the United States, the greatest lawyer
job in the world, some say--whether she would be able to fulfill her
duty as Solicitor General by defending this very law she had opposed.
She promised the committee under oath that she could and that she
would defend the law. She said that her ``role as Solicitor General . .
. would be to advance not my own views, but the interests of the United
States.'' That is absolutely correct. That is the duty of the Solicitor
General. It is a duty, not a matter of discussion. She stated she was
``fully convinced'' that she could ``represent all of these interests
with vigor, even when they conflict with my own opinions.''
She said she would ``apply the usual strong presumption of
constitutionality'' to the don't ask, don't tell law as reinforced by
``the doctrine of judicial deference to legislation involving military
matters.''
There was no doubt about what Ms. Kagan's duty was as Solicitor
General if, as was expected, she would be confronted with legal
challenges to the don't ask, don't tell law. She had a clear duty under
the law and in her duty as Solicitor General to defend this law of the
United States. In addition, she had explicitly promised the Senate
under oath that she would defend this specific law, even though she
disagreed with it.
As it happened, Ms. Kagan was, indeed, faced with the opportunity to
defend the don't ask, don't tell law immediately after she took office.
Right after she took office, there it was.
In the months leading up to her confirmation, two Federal courts of
appeals had decided cases challenging don't ask, don't tell. In one
decision, the First Circuit--is in the Northeast of our country--upheld
the law. They said it was lawful and constitutional. In the other case,
called Witt v. Department of Air Force, the Ninth Circuit, on the west
coast, considered to be the most liberal circuit in America, refused to
uphold the law.
The Ninth Circuit's decision in the Witt case basically did two
things. I hope my colleagues will pay attention to this because it is
important. Did the Solicitor General, who now wants to be on the
Supreme Court, fulfill her duty or did she not?
The Ninth Circuit ordered the military to go back down to the
district court. This is the Court of Appeals, one step below the
Supreme Court. They said: No, we want this case to go back to the
district court to be decided after a trial, during wartime, I might
add. The military would be required to justify the don't ask, don't
tell law under a new legal standard that the court had invented out of
whole cloth.
The Ninth Circuit said the government would not be allowed to defend
the law as a rational, uniform policy that applies to all Armed Forces,
as had been done in the First Circuit where the law was affirmed. The
First Circuit affirmed it as a matter of law, without any big trial.
Was this statute, this congressional action setting military policy,
unconstitutional? The First Circuit said it was not. It was lawful. But
the Ninth Circuit said the military would have to prove that the
application of don't ask, don't tell ``specifically to [this individual
plaintiff--Witt] significantly furthers the government's interest and
[that] less intrusive means would [not] achieve substantially the
government's interest.'' That was a devastating standard. It was very
problematic.
After that unprecedented decision in mid-2008, the Solicitor
General's Office then in the Bush administration immediately recognized
the seriousness of the decision and authorized an appeal to the full
Ninth Circuit en banc and asked the full circuit to overrule this
three-judge panel decision.
The court did not agree to take the case and overrule the panel. But
there were strong objections from several judges of the Ninth Circuit
who thought their colleagues had clearly gotten the case wrong, as I
truly believe they had.
At that point, the government was faced with a decision: Should they
appeal the Ninth Circuit decision directly to the Supreme Court? By
that time, the Obama administration had come into office and, Ms.
Kagan, who believed this law was immoral and an injustice of the first
order, had been confirmed as Solicitor General. It fell to her to
decide whether to take the appeal to the Supreme Court. She refused.
Instead, she decided to let the Ninth Circuit decision stand and
allow the case to go back down to the trial court for a prolonged
trial. In so doing, she failed in her fundamental responsibility as
Solicitor General and to her sworn promise to the Senate to defend the
statutes of the United States regardless of her personal policy views.
I make that statement with care. I gave her 10 minutes, virtually
uninterrupted, to explain why she made this decision, because it
troubled me, as someone who understands the importance of the duties of
the Solicitor General. If you do not fulfill your duties of Solicitor
General, should you then be promoted to the U.S. Supreme Court, I ask?
This was a very bad decision, in my view.
Her long answer I thought was hollow and at many points disingenuous.
She gave three reasons why she acted the way she did.
First, she said she concluded it would be better to wait to appeal to
the Supreme Court until after trial because a trial would build a
``fuller record'' of the case. Once the facts were better developed,
she claimed, the government might be in a better position before the
Supreme Court.
Second, she said that allowing the case to go back to the district
court would help the government in a future appeal because it would be
able to ``show what the Ninth Circuit was demanding that the government
do'' in order to defend the don't ask, don't tell statute. Going
through a disruptive trial, she said, would allow the government to
tell the Supreme Court just how invasive and ``strange'' were the
demands of the Ninth Circuit on the government. Well, they were
invasive and strange. There is no doubt about that.

Third, she said, the appeal in the Witt case would have been
``interlocutory''--that is an appeal in the middle of a case rather
than at the end, after a final judgment--and the Supreme Court prefers
not to hear these kinds of appeals.
None of her explanations are credible, in my view. If you analyze
this fairly, I do not believe any one of those explanations can be
sustained. Another explanation, however, can be sustained.
It is true that appellate courts, including the Supreme Court, prefer
to hear appeals at the end of a case rather than at the middle, but
that is a decision the Court can make for itself and does make for
itself. It is not something the Solicitor General should decide on the
Court's behalf and not to take up a case when they have a good legal
basis to take it up and to avoid an incredibly burdensome trial would
undermine military policy in 40 percent of the country. The Ninth
Circuit includes 40 percent of America under its jurisdiction.
At the very least there would have been no harm to the government in
asking the Court to review the case early. No harm whatsoever. If the
Court refused to take the case at that time--interlocutorily--the
government could always take a later appeal. Any concerns about
avoiding early appeals were clearly outweighed in this case. There
already had been a split among the circuit courts of appeals. The Ninth
Circuit ruling squarely conflicted with the First Circuit, and it was
also at

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odds with the decisions from four other circuit courts on similar
issues. The Ninth Circuit opinion presented clean questions of law:
Should this matter be decided as a matter of law, as the First Circuit
said, or should it be decided only after some prolonged trial, as the
Ninth Circuit said? This was a critically important matter that I think
the Supreme Court, recognizing we are a Nation at war, recognizing this
is an important Defense Department policy, would have agreed to hear.
Ms. Kagan's second explanation--that letting the case go to trial
would allow the government to just show how painful a trial would be--
makes no sense. The Ninth Circuit made it very clear in their opinion
that the government was going to have to justify the application of
don't ask, don't tell to this specific plaintiff--Ms. Witt--to prove
that this specific plaintiff was going to harm the military if she were
to be allowed to remain in the Air Force. It was also obvious that such
a trial was going to be disruptive to the military and that it would
harm the ``unit cohesion'' that Congress had set out to protect when it
passed don't ask, don't tell.
Ms. Kagan's predecessors in the Department of Justice and in the
Solicitor General's Office immediately recognized the damage that would
result from allowing the Ninth Circuit decision to stand. That is why
they asked for a rehearing immediately. At that time, this is what they
said:

[The Ninth Circuit decision] creates an inter-circuit split
. . . a conflict with Supreme Court precedent, and an
unworkable rule that cannot be implemented without disrupting
the military.

I think they were exactly right on that. The Ninth Circuit decision,
they went on to say, made the constitutionality of a Federal law
setting military policy for the entire Nation ``depend[] on case-by-
case surveys, taken by lawyers, of the troops in a particular
plaintiff's unit.'' And that is true. Immediate review, they insisted,
was ``needed now to prevent this unprecedented and disruptive
process.''
Most importantly, Ms. Kagan's first explanation to the Judiciary
Committee for her decision to send this case back to trial--that she
thought the government's case would benefit from a fuller factual
development of the case--was simply false. The records of this case on
remand to the District Court show that Ms. Kagan knew--knew--at the
time she decided to let the case go back to trial that such a trial was
going to be massively disruptive.
I have studied the record in the case as it headed for trial, where
lower ranking lawyers in the Department of Justice are now trying to
defend the case at trial. These lawyers have been fighting desperately
to avoid or to limit this open discovery process. According to these
career attorneys, the discovery process is ``threatening'' and
``jeopardizing the unit morale and cohesion.''
Remember, Ms. Kagan told us--the members of the Judiciary Committee,
during her confirmation testimony--that building a factual record would
be good for the government's case. But here the career lawyers who are
defending the case are contending that building this factual record is
bad for the government, and these lawyers are right.
The plaintiff in this case has asked for and received, by virtue of
the Ninth Circuit order--and this was plainly predictable from reading
that order--access to the personnel records of the entire military unit
of the plaintiff. They have demanded depositions of other soldiers who
served with the plaintiff before she was separated from the military.
They have demanded the right to interview soldiers about their private
lives, their personal views of their former colleague, and their
private thoughts about sexuality.
As I have said before, this is not just a case in which Ms. Kagan
showed bad legal judgment. She did not send her client, the U.S. Air
Force, down this path by mistake, it seems to me. She knew this was
going to happen, and I believe she had reasons other than a strategic
plan to defend the law as her reasons in making this decision.
We know Ms. Kagan realized a trial would harm the military's
interests because she said so to the lawyers on the other side of the
case in the weeks before she made the final decision not to appeal.
Once the case was back in this trial court, in this district court, the
plaintiff's lawyers in one of the hearings made this statement to the
trial judge there:

[T]he government just doesn't want any discovery. I have
heard that message from the government clearly--loud and
clear. [We] were asked to meet with the Solicitor General of
the United States in April, and we heard that message loud
and clear that discovery is a big problem.

So they had been asked, these lawyers, to go to Washington to meet
with the Solicitor General to discuss the case and were told at that
meeting that discovery was bad. Yet she testified in our hearing just a
few weeks ago that she thought it was good for the government.
In May of 2009, as Solicitor General, she made a decision to block an
appeal to the Supreme Court. Before she made that decision, she had
already met with these opposing counsel. And who were these lawyers?
They were lawyers from the ACLU who were committed to the defeat and
the elimination of this don't ask, don't tell law. She told them ``loud
and clear'' that developing a factual record would be bad for the
government. Yet she told us just a few weeks ago that it was good; that
it was going to help the government's case.
It appears to me that the most plausible--almost the only--conclusion
that one can reach is that Ms. Kagan and the Obama administration
generally were trying to keep the Supreme Court from deciding the
constitutionality of don't ask, don't tell. Ms. Kagan, like the
President, is personally opposed to don't ask, don't tell. The
President has asked Congress to repeal don't ask, don't tell, and there
is legislation pending now in the Senate that would repeal that law.
But given the record of the Supreme Court on questions of military
personnel policy, I am confident that the Ninth Circuit's radical
decision would have been overturned had the Solicitor General taken the
appeal. And given the timing of the case, we would likely have been
reading a few weeks ago of a Supreme Court opinion holding that don't
ask, don't tell was a constitutionally legitimate exercise of
Congress's power over military affairs. If you think about it, you can
see why such a ruling--upholding the constitutionality of a law that
the administration wants to repeal--might not be politically helpful to
them in that process.
As I said earlier, there was another case dealing with don't ask,
don't tell where the First Circuit had upheld the law. Of the 12
plaintiffs involved in that First Circuit case, 11 of them decided to
abandon their case and not appeal. In other words, they lost, they
could have appealed to the Supreme Court, but hey abandoned their
appeal and accepted the loss.

Why would they do that? Why would their lawyers allow them to do
that? Because, it appears to me, those defendants and their lawyers--
and included among some of those lawyers were Ms. Kagan's former
colleagues from Harvard Law School--knew that the Supreme Court would
likely uphold don't ask, don't tell if they took an appeal. That is
what they did not want.
Only one of the plaintiffs insisted on appealing to the Supreme
Court--1 of the 12--in the face of much resistance from his legal
advisers who, as you can see, were less interested in vindicating the
right of those specific defendants than they were trying to create the
best possible strategy to undermine or to defeat don't ask, don't tell.
Interestingly, Ms. Kagan, again, did what the lawyers attacking the law
wanted.
One of the defendants wanted to appeal the First Circuit case. She
could have allowed that appeal to go forward and gotten a definitive
Supreme Court ruling. But she wrote the Supreme Court that they should
not hear the appeal of the First Circuit; they should not accept that
case for Supreme Court review. By urging the Court not to hear an
appeal from that decision she denied the government a definitive
decision from the Supreme Court, which I think was within their grasp.
Actually, one of the reasons she urged the Supreme Court not to take
the appeal in the First Circuit case was because she said the Ninth
Circuit case would be a better case for the Court to review. Then, when
the Ninth Circuit case was ripe, she did not appeal it. In

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effect, Ms. Kagan prevented the Supreme Court from ruling on the
constitutionality of this law--a law she so strongly opposed.
So I think it is clear. It would seem to me to be clear. If I am
wrong about this, I would like to see my colleagues explain it. I offer
them an opportunity. I don't think I am wrong. I have tried a lot more
cases than Elena Kagan ever tried--since she has never tried one. I
think it is clear her strategy was to avoid a Supreme Court ruling--
because she thought the Supreme Court would uphold don't ask, don't
tell--and to drag out the proceedings in the lower court in hopes that
maybe the administration would be able to convince Congress to repeal
the law before the Supreme Court ruled. The record shows she was
willing to do so, even if it meant this military unit would be turned
upside-down by the lawyers from the ACLU.

Remember, in each case--even in the First Circuit case, where they
had lost--the ACLU lawyers did not want that case to go on appeal. And
in the Ninth Circuit case they did not want the case to go on appeal to
the Supreme Court. Why? To me, that is the final argument. Why did the
Solicitor General acquiesce and adopt the very policy the ACLU lawyers
wanted--not to appeal to the Supreme Court--other than that she did not
want a definitive ruling and agreed with them it was likely the Supreme
Court would affirm the law? I think that is what we are talking about.
I hate to say that. That is why, in an unprecedented way--I don't
think it has ever happened since I have been in the Senate, certainly
for a Supreme Court nominee, that they were given a full 10 minutes to
answer uninterrupted why they made that decision.
Her answer was unsatisfactory for the Solicitor General, the lawyer
for the United States of America, whose duty and explicit promise was
to defend don't ask, don't tell, even though she and her President did
not agree with it.
I have expressed my concern in this process, that Ms. Kagan's
background and her record is more that of a political lawyer than a
real lawyer. She certainly has never been a judge. She has never been,
for any real period of time, a real lawyer. She went right out of law
school, had 2 years in a private law firm and 14 months as Solicitor
General.
These political lawyers, sometimes they do not grasp the
responsibility and duty and the power and the beauty and the majesty of
the American legal system. They think it is all politics. They have not
been before judges as I have been, as have many other lawyers by the
hundreds of thousands in America, and seen justice rendered day after
day--and sometimes seen injustice rendered--and know how to admire and
appreciate justice and objectivity and legal acumen.
Ms. Kagan's willingness to advance a political agenda without regard
for her duty strikes at the very root of the rule of law in America,
our greatest strength. As the hymn says, our liberty is in law. A
person who cannot constrain herself to her proper role, to fulfill her
duty to defend law, even when it runs contrary to her personal views,
is no more likely to follow a law she dislikes if she is elevated to
the Supreme Court. I suggest that is a threat to justice in America.
I do think this is another incident--there are others in the record
of this nominee--that indicates this is a political lawyer, an agenda-
driven lawyer, someone who has never served as a judge and never truly
practiced law. The horrendous decision in not pursuing the opportunity
to get a final decision from the Supreme Court on don't ask, don't
tell, I believe, was made for reasons other than faithfully fulfilling
her responsibilities as Solicitor General to defend these laws. And I
believe it is disqualifying for one who seeks to serve on the highest
Court in the land.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant bill clerk proceeded to call the roll.
Mr. McCAIN. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER (Mr. Merkley). Without objection, it is so
ordered.
Mr. McCAIN. Mr. President, I rise to discuss Solicitor General Elena
Kagan's nomination to the U.S. Supreme Court. During my time in
Congress, I have had the honor to vote in support for the nominations
of several Associate Justices put forward by both Democratic and
Republican Presidents. Presidents are due a great amount of deference
in the evaluation of his or her nominees to be members of the highest
Court in the land, and elections, I understand very well, do have
consequences. However, in this case I am not able to provide such
deference to President Obama's nominee who has shown such a public
unwillingness to follow the law.
When Ms. Kagan was dean of the Harvard Law School, she unmistakably
discouraged Harvard students from considering a career in the military
by denying military recruiters the same access to Harvard students that
was granted to the Nation's top law firms. She barred military
recruiters because she believed the Federal Government's don't ask,
don't tell policy to be ``a profound wrong--a moral injustice of the
first order.''
Ms. Kagan is entitled to her opinion of whether the policy is wrong.
She is not entitled to ignore the law that required universities to
allow military recruiters on campus or forgo Federal funds.
The chief of recruiting for the Air Force Judge Advocate General
Corps was repeatedly blocked from participating in Harvard's spring
2005 recruiting season and wrote to Pentagon leaders: ``Harvard is
playing games and won't give us an on-campus interviewing date.''
The Army's report from the 2005 recruiting season was even more
blunt, stating: ``The Army was stonewalled at Harvard.''
Ms. Kagan sought a compromise by asking the law school's Veterans
Association to host military recruiters, but the association responded:
``Given our tiny membership, meager budget, and lack of any office
space, we possess neither the time nor the resources . . . of
duplicating the excellent assistance provided by the Harvard Law School
Office of Career Services.''
The association was right and an Air Force Judge Advocate General
recruiter wrote Pentagon officials, and I quote from his letter:
``Without the support of the Career Services Office, we are relegated
to wandering the halls in hopes that someone will stop and talk to
us.''
That was a remarkable statement from a military recruiter. According
to the Solomon Amendment, any institution that barred recruiters from
their campus would therefore not be eligible for Federal funds. Ms.
Kagan and Harvard University, in general, and the law school in
particular, were, according to this Air Force officer, doing that.
``Without the support of the Career Services Office we are relegated to
wandering the halls in hopes that someone will stop and talk to us.''
The university that portrays itself as the premier institution in
America relegated our officers and recruiters for honorable service in
the military of the United States of America to ``wandering the halls
in hopes that someone will stop and talk to us.''
Ms. Kagan had a direct role in seeing that military recruiters were
``relegated to wandering the halls in hopes that someone will stop and
talk'' to them. Ms. Kagan's claim that she was bound by Harvard's
antidiscrimination policy is belied by the fact that her predecessor
allowed military recruiters full official access, a policy Ms. Kagan
changed.
While Ms. Kagan barred military recruiters access to the school,
Harvard continued to receive millions of dollars in Federal aid. I will
not go into my opinion of Harvard University's behavior throughout this
whole issue of whether recruiters should be allowed on their campus.
There are members of the ROTC who are still condemned to go to a
neighboring institution for their training. But we are speaking of Ms.
Kagan.
During her confirmation hearing last month, Ms. Kagan asserted that
Harvard law school was ``never out of compliance with the law . . . in
fact, the veterans' association did a fabulous job of letting all our
students know that the military recruiters were going to be at Harvard.
. . .''

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She went on to state: ``The military at all times during my deanship
had full and good access.''
Absolutely false statement. Facts show that these statements are
false, and recruitment for our Nation's military suffered due to her
actions.
Well, I strongly disagree with Ms. Kagan. I take no issue in terms of
her nomination with her opposition to President Clinton's don't ask,
don't tell policy. She is free to have her own ownership. Ms. Kagan was
not free to ignore the Solomon Amendment's requirement to provide
military recruiters equal access because she opposed don't ask, don't
tell. In short, she interpreted her duties as dean of Harvard to be
consistent with what she wished the law to be, not with what the law
was as written.
In the end, Ms. Kagan's interpretation of the Solomon Amendment was
soundly rejected by the U.S. Supreme Court. By changing the policy she
inherited and restricting military recruiter access when the prevailing
law was to the contrary, Ms. Kagan stepped beyond public advocacy in
opposition to a policy and into the realm of usurping the prerogative
of the Congress and the President to make law and the courts to
interpret it. It is precisely for this reason that I cannot support her
nomination.
I have previously stated that I do not believe judges should stray
beyond their constitutional role and act as if they have greater
insight into the meaning of the broad principles of our Constitution
than representatives who are elected by the people. These activist
judges assume the judiciary is a superlegislature of moral
philosophers. It demonstrates a lack of respect for the popular will
that is fundamental to our republican system of government.
Regardless of one's success in academic and government service, an
individual who does not appreciate the commonsense limitations on
judicial power in our democratic system of government ultimately lacks
a key qualification for a lifetime appointment to the bench. For Ms.
Kagan, given the choice to uphold the law that was unpopular with her
peers and students or interpret the law to achieve her own political
objectives, she chose the latter.
I cannot support her nomination to the Supreme Court, where, based on
her prior actions, she is unlikely to exercise judicial restraint and
respect the roles of the coequal branches of government.
I am sure my colleague from Alabama, who has done so much work on
this issue, probably recalls that during her confirmation process,
Peter Hegseth, who is the executive director of Vets for Freedom, a
veteran of the Iraq war, and currently an infantry captain in the
Massachusetts Army National Guard, testified: ``I have serious concern
about Elena Kagan's actions toward the military and her willingness to
myopically focus on preventing the military from having institutional
and equal access to top-notch recruits at a time of war.''
He went on to say: ``I find her actions toward military recruiters at
Harvard unbecoming a civic leader and unbefitting a nominee to the U.S.
Supreme Court.''
Another veteran, Flagg Youngblood, ROTC graduate from Princeton,
testified at the same hearing: To defend the barriers Dean Kagan
erected by saying military recruiting did not suffer misses the point.
Just imagine how many more among Harvard Law's 1,900 young adults would
have answered the Defense Department's call.
Lastly, retired Air Force COL Thomas Moe, a veteran with 33 years of
service to our Nation, testified: ``Ms. Kagan knowingly defied a
particular law and treated military recruiters as second-class
citizens. How can our warriors look at such people when they are poised
at the tip of the sword, ready to sacrifice everything for their
country, while a cloistered clique in ivory towers eats away at their
institution for the sake of narrow ideological interests.''
I know the Senator from Alabama was present at these hearings. I ask
unanimous consent to engage in a short colloquy with the Senator from
Alabama.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCAIN. Mr. President, Ms. Kagan stated that she--I understand
her words were ``reveres the military;'' is that correct?
Mr. SESSIONS. She did use that word.
Mr. McCAIN. Is it a bit contradictory that you would want to treat
the military as ``separate but equal,'' condemning them--the Air Force
Judge Advocate General military person said they were condemned to
wandering the halls of Harvard Law School in hopes that someone would
stop and talk to them. Is that, I wonder, in keeping with the actions
of someone who claims they revere the military?
Mr. SESSIONS. I certainly do not believe it is. As the Senator has
noted repeatedly--and we serve on the Armed Services Committee
together--this was not a military policy; this was a law passed by this
Congress and signed by President Clinton, with whom she worked for 5
years. But she was punishing these young officers, many of them,
demeaning them, making them be treated in a second-class way because
she did not agree with that policy.
Mr. McCAIN. May I ask the Senator, is there any doubt in your mind,
given the testimony of other witnesses, including letters such as from
the Air Force Judge Advocate General recruiters and others, that Ms.
Kagan--then Dean Kagan--did take these actions restricting the access
of recruiters to the Harvard Law School?
Mr. SESSIONS. There is absolutely no doubt about it. She openly sent
an e-mail to all students and said she considered this policy that
Congress adopted a moral injustice of the first order.
On one occasion a military recruiter was apparently working in one
building, and she spoke to a protest rally outside the next-door
building, creating a climate that was certainly hostile to the good
efforts of that military officer.
Mr. McCAIN. But at the same time, then-Dean Kagan never asked to
return the Federal funds that were flowing into the university?
Mr. SESSIONS. No. In fact, it took the president of Harvard, Larry
Summers--now President Obama's chief financial economic adviser; he was
then president of Harvard--he had to reverse her decision when he was
faced with the loss of Federal funds. The entire recruiting season,
however, was lost before the military realized they were systematically
being blocked. And they protested to the university, and finally she
was overruled by the president.
Mr. McCAIN. So then-Dean Kagan's actions, which she believed--and I
respect her views that it was a moral imperative, and basically she
chose what she viewed as a moral imperative--i.e., her opposition to
the don't ask, don't tell law--as overriding compliance with the law,
which then brings into question her qualifications and what her future
actions will be as a member of the U.S. Supreme Court.
Mr. SESSIONS. Absolutely. I think that is the essence of what
happened. She eventually acknowledged that at no time was the Solomon
Amendment not in force at Harvard when she was there.
I know Senator McCain remembers that we passed four versions of the
Solomon Amendment because every time one was passed, these law schools
or others figured out a way to get around it. We finally wrote one they
couldn't get around. This was systematic obstruction by universities
that I think does not speak well of them.
She also filed a brief with the Supreme Court attacking the law, and,
as the Senator noted earlier, the Supreme Court rejected that brief 8
to 0.
Mr. McCAIN. So we are not discussing the merits or demerits of a law
that was passed by Congress; we are discussing then-Dean Kagan's
actions in opposition to this law which were absolutely in
contradiction to the law.

Mr. SESSIONS. Absolutely. Harvard had agreed to follow this law. Her
predecessor as dean, Dean Clark, had agreed to do so. She seized upon
an opportunity, without legal authority, to cease to comply with that
law, denied the military full access to the campus as the law required,
and eventually had to be reversed by the president of Harvard.
Mr. McCAIN. Could I finally ask my colleague from Alabama, do you
ever think the day will come when we have a nominee for the U.S.
Supreme Court who didn't go to Harvard Law School?

[[Page S6708]]

Maybe that might be healthy for America.
Mr. SESSIONS. Well, you know, I think it might. If they have good
judgment and are good people, I am not so worried where they come from.
But when you have five people on the Supreme Court--and we will have
that if she is confirmed--all from one of the boroughs of New York and
most of them from Harvard or Yale, then I think it does raise questions
about it. Maybe someone from Arizona could handle that job.
Mr. McCAIN. Or perhaps Alabama.
Mr. SESSIONS. Perhaps so.
With regard to those young officers who were on the Harvard campus,
my understanding of the military--and the Senator's experience is far
greater than mine--is that many of those officers may well have just
returned from Iraq or Afghanistan. You don't just serve all your career
as a recruiter. I mean, they may have been combat officers or
helicopter pilots or convoy leaders putting their lives at risk. I
wonder how the Senator thinks they felt when they faced this kind of
discrimination.
Mr. McCAIN. Frankly, I would say to my colleague from Alabama,
obviously it is not related to Dean Kagan, but treatment at these elite
institutions in the Ivy League, going all the way back to the Vietnam
war--you know, they are entitled to their views and their opinions and
their opposition, but to treat people who were designated by the
President of the United States to be recruiters, to motivate other
young men and women to join what I believe is a very honorable
profession, most honorable, to put impediments in their way and
intentionally block their ability to do so is something that I guess
they will have to answer for in the future.
I thank my colleague from Alabama for his leadership on this issue on
the Judiciary Committee. He has worked tirelessly, night and day, on
this issue for a long period of time now. I thank the Senator from
Alabama for his outstanding work and leadership. I appreciate it. I
know Americans do too.
Mr. SESSIONS. I thank the Senator. I would note that one of the
arguments that has been made--and my time is about up--has been that:
Well, nothing was really done at Harvard. We asked a veterans group, a
veterans organization to take care of all of these things we were
refusing to allow the military to have through the Career Services
Office.
And this is what the veterans group said at the time. They sent an e-
mail to everybody on campus because it offended them that they were
being asked to do a job that should have been done through the Career
Services Office. They sent this e-mail:

Given our tiny membership, meager budget, and lack of any
office space, we possess neither the time nor the resources
to routinely schedule campus rooms or advertise extensively
for outside organizations, as is the norm for most recruiting
events. . . . [Our effort] falls short of duplicating the
excellent assistance provided by the Office of Career
Services.

So this argument has been repeatedly made: Don't worry about it; the
veterans groups were taking care of all of this. It is bogus. It is
incorrect. And she repeated that. I am not surprised to get that kind
of statement from the White House spin doctors, but a nominee under
oath----
The PRESIDING OFFICER. The Republican time has expired.
Mr. SESSIONS. Should not have made the statement she did in that
regard.
I yield the floor.
Mr. LEAHY. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. LEAHY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Franken). Without objection, it is so
ordered.
Mr. LEAHY. Mr. President, on July 1 of this year, the Judiciary
Committee received a letter from LT Zachary W. Prager. He serves in the
U.S. Navy Judge Advocate General's Corps. He writes:

I was a student at Harvard Law School under Ms. Kagan and
commissioned into the Navy. . . . I am grateful to Dean Kagan
for her leadership on military recruiting, as well as the
myriad of other positive impacts that she had on my law
school experience. I would not be serving today--

Referring to the military--

without it. She has earned my most heartfelt support for her
nomination.

This is a member of the military who felt Dean Kagan helped greatly
with him joining the military.
As the dean of Harvard Law School, Elena Kagan worked hard to find
ways to both enforce the school's nondiscrimination policy and allow
the military to recruit Harvard students.
Mr. President, I ask unanimous consent that Lieutenant Prager's
letter be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
Washington, DC.
Dear Chairman Leahy: I write in support of Solicitor
General Elena Kagan's nomination to the United States Supreme
Court. I am a lieutenant in the U.S. Navy Judge Advocate
General's Corps. I was a student at Harvard Law School under
Ms. Kagan and commissioned into the Navy upon graduation in
2007. Without Ms. Kagan's leadership and evenhandedness as
Dean, I would not have joined the military,
Dean Kagan set a standard at Harvard of respect for
military servicemembers, while still expressing her
opposition to the Don't Ask, Don't Tell policy. She made it
clear that Harvard Law School would fight the policy, but
never impugn the soldiers, sailors and airmen who came to
Harvard to recruit. Her guidance on this issue permeated
throughout her administration, from the Dean of Student's
Office to the Office of Career Services. Like many students,
I was reticent to join an institution that practices overt
discrimination. The environment they established opened the
door for me to consider the military as a career path. Their
example helped clear my reservations.
My decision to join the Navy was welcomed by Dean Kagan's
administration. Military service was valued the same as any
other public interest job. At a dinner to honor those of us
entering public service, I dined next to public defenders,
federal prosecutors and human rights activists. Notably, I
now serve in the Navy alongside another classmate, and alumni
from my class serve in the Marine Corps and Army Judge
Advocate General's Corps.
I am proud to serve in the Navy and I love my job. I
completed a deployment to Iraq and leave soon for my next
tour overseas in Japan. I am grateful to Dean Kagan for her
leadership on military recruiting, as well as the myriad of
other positive impacts that she had on my law school
experience. I would not be serving today without it. She has
earned my most heartfelt support for her nomination.
Very Respectfully,
Zachary Prager.

Mr. LEAHY. Mr. President, on that subject, I would like to note a
letter of support the Judiciary Committee received from 1LT David
Tressler. He was at Harvard Law School when Solicitor General Kagan
served there as dean. He is currently serving in harm's way in
Afghanistan, and he strongly supports Solicitor General Kagan for this
nomination.
Here is what the lieutenant writes:

I believe that, while dean of Harvard Law School, [Elena
Kagan] adequately proved her support for those who had
served, were currently serving, and all those who felt called
to serve, including those like me who joined upon graduation
as well as those patriots who were not permitted to do so
under the policy of ``Don't Ask, Don't Tell.''

Mr. President, I ask unanimous consent that Lieutenant Tressler's
letter of support be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

June 30, 2010.
Re: Nomination of Elena Kagan.

Hon. Patrick Leahy,
Chairman, Senate Committee on the Judiciary, Dirksen Senate
Office Bldg., Washington, DC.
Hon. Jeff Sessions,
Ranking Member, Senate Committee on the Judiciary, Dirksen
Senate Office Bldg., Washington, DC.
Dear Chairman Leahy and Senator Sessions: From Afghanistan
I have read about the criticism being leveled at Elena Kagan
during the confirmation hearings for her nomination as an
Associate Justice of the Supreme Court over her decisions and
positions while dean of Harvard Law School with regard to
military recruiters on campus and the military's ``Don't Ask,
Don't Tell'' (DADT) policy. Senator Sessions issued a
statement that Kagan ``stood in the way of devoted,
hardworking military recruiters,'' and Senator Jon Kyl said
that ``[h]er tenure . . . was marred, in my view, by her
decision to punish the military and would-be recruits for a
policy--`don't ask, don't tell' and the Solomon Amendment. .
. .'' I am one of those recruits and write to share with the

[[Page S6709]]

Committee my experience as a law student at Harvard between
2004 and 2006 when the controversy over military recruiters
on campus unfolded. Shortly after my 2006 graduation I
enlisted in the Army Reserve and I am currently serving as a
civil affairs officer at a remote combat outpost in eastern
Afghanistan.
I am focused on my mission here, but as a citizen, lawyer,
and military officer who swore to defend the Constitution, I
care also about the integrity of the Supreme Court selection
process and disagree with efforts to paint Elena Kagan as
unsupportive of the military.
Like most Americans I want to see a nomination process
focused on Kagan's qualifications and judicial philosophy,
not on empty political theater. The details and chronology of
her decisions with regard to military recruiters on campus
have been well-reported by the media and described again by
Ms. Kagan, but I will recount them briefly from my experience
as a student who was there at the time considering enlistment
in the military. I remember her decisions and the tenor of
her messages about the military, DADT, and military
recruiting.
There was a legitimate legal debate taking place in the
courts over the Solomon Amendment, and when court decisions
allowed it in 2004, Kagan made a decision to uphold the
school's anti-discrimination policy. Military recruiters were
never barred from campus. During the brief period when
recruiters were not given access to students officially
through the law school's Office of Career Services, they
still had access to students on campus through other means.
Immediately following this period, in 2005 more graduating
students joined the military than any year this decade,
according to the Director of the Law School's Office of
Career Services.
Kagan's positions on the issue were not anti-military and
did not discriminate against members or potential recruits of
the military. Nor do I believe that they denied the military
much-needed recruits in a time of war. There are only a few
of us each year who joined the military while attending, or
after graduation from, Harvard Law. Kagan's decision to
uphold the school's anti-discrimination policy for a brief
period of time and express disagreement with DADT did not
prevent us from talking with recruiters and joining.
I heard Kagan speak several times about this issue. She
always expressed her support for those who serve in the
military and encouraged students to consider military
service. It was clear she was trying to balance the
institution's values underlying its antidiscrimination policy
with her genuine support for those who serve or were
considering service in the military. Indeed, her sense of
DADT's injustice seemed to grow out of her belief in the
importance and value of military service. I remember that she
repeatedly said as much while dean. More recently while
speaking to cadets at West Point, she explained that, ``I
personally believe that the exclusion of gays and lesbians
from the military is both unjust and unwise. I wish devoutly
that these Americans too could join this noblest of all
professions and serve their country in this most important of
all ways.''
I believe she was right. But Senator Sessions recently
suggested, referring to Ms. Kagan's positions, that ``to some
in the elite, progressive circles of academia, it is
acceptable to discriminate against the patriots who fight and
die for our freedoms.'' With due respect, as a Soldier who
serves side by side in a hostile combat zone with patriots
who are subjected to the discrimination imposed by DADT
policy, I see it differently.
Like most servicemembers serving in a combat theater, when
we go outside the wire, I care more about the fitness,
experience, and tactical proficiency of the Soldiers around
me than who they might want to date or marry when they get
home. Out here on the ground in Afghanistan, when we are
attacked--which happens often at and around my outpost--it
does not matter who is straight or gay any more than it
matters who is white or black or who among us can drink
legally and who is still underage. We come under fire
together. And when it's over, we pick ourselves up and
continue on with the mission together. Yet contrary to the
military's code of leaving no comrade behind, DADT continues
to selectively discriminate against some of these
servicemembers who put their lives at risk for this country.
Nevertheless, reasonable, well-intentioned and equally
honorable people disagree about the wisdom of DADT. To attack
Ms. Kagan for a principled position she took as a law school
dean that had no practical effect on military recruitment
looks, from where I stand, like a political distraction. What
the country deserves instead is a substantive debate over
Elena Kagan's judicial philosophy and her qualifications to
interpret the Constitution and decide cases as a member of
this nation's highest court.
I urge you to maintain that focus for the remainder of the
hearings and refrain from further hyperbole questioning Ms.
Kagan's support for the men and women of the U.S. military. I
believe that, while dean of Harvard Law School, she
adequately proved her support for those who had served, were
currently serving, and all those who felt called to serve,
including those like me who joined upon graduation as well as
those patriots who were not permitted to do so under the
policy of ``Don't Ask, Don't Tell.''
Respectfully,
David M. Tressler,
First Lieutenant, Civil Affairs, United States Army
Reserve, Khost Province, Afghanistan.

Mr. LEAHY. I might say what a red herring this question is of where a
recruiter's office is. If you have people who want to serve in the
military, they can usually find them.
Our youngest son joined the U.S. Marine Corps directly out of high
school--a brilliant young man who wanted to serve his country. So I
asked him again the other day, just to be sure.
I said: Mark, now, was that recruiter at the high school or on
campus?
He said: Oh, no, Dad. We didn't have anything like that.
I said: How did you find it?
He said: Well, I got out the telephone book. I looked up the address:
downtown Burlington. He told me exactly where it was. I know the area.
I walked down there and joined the U.S. Marine Corps.
Frankly, and obviously, my wife and I are very proud of him. He
served honorably. I cannot help but think for just about everybody I
know who joined the military, if you asked them: How did you do this,
they would say: Oh, I checked where the recruiter was and went and
joined or I was at an event somewhere where somebody was speaking, and
I heard about it and joined.
So this is probably the biggest red herring. I have been here for
debates and votes on every single member currently serving on the
Supreme Court and some who have since retired from the Supreme Court. I
have heard a few red herrings over the years, never one like this.
Mr. President, during the 3 months that this nomination has been
pending, Senators have made many statements about Solicitor General
Elena Kagan. I wish to commend the statements made yesterday and today
by the majority leader, Senator Cardin, Senator
Feinstein, Senator Kohl, Senator Franken, Senator Durbin, Senator
Lieberman, Senator Dorgan, Senator Gillibrand, Senator Shaheen, Senator
Klobuchar, Senator Hagan, Senator Mikulski, Senator Bingaman, Senator
Carper, Senator Levin, Senator Whitehouse, Senator Graham, Senator
Burris, Senator Specter, Senator Collins, and Senator Boxer. They were
outstanding in describing the qualifications of a nominee who should be
confirmed with a strong bipartisan majority.
If I might, seeing the distinguished Presiding Officer, I wish to
acknowledge the extraordinary contributions of his colleague, Senator
Klobuchar. She spoke eloquently. She organized a group of Senators, and
she persevered, despite the personal loss she suffered this week.
When President Obama set out to find a well-qualified nominee to
replace retiring Justice John Paul Stevens, he said he would ``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, whose 49th birthday is today,
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
few months, two Republican appointees to the Supreme Court have made
the same point. 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 last year and was
succeeded by Justice Sotomayor, delivered a thoughtful commencement
address at Harvard University. He spoke about judging, and explained
why thoughtful judging requires grappling with the

[[Page S6710]]

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 I believe does 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,
and to Supreme Court precedent. In doing this she has shown an
adherence to the rule of law and an appreciation for the real world
ramifications of the Supreme Court's decisions.
Given America's social and technological development since we were a
young nation, interpreting the Constitution's broad language requires
judges and Justices to exercise judgment. In the real world, there are
complex cases with no easy answers. In some instances, as Justice
Souter pointed out in his recent commencement address, different
aspects of the Constitution point in different directions, toward
different results, and they need to be reconciled. Acknowledging these
inherent tensions is not only mainstream, it is as old as the
Constitution, and it has been evident throughout American history, from
Chief Justice John Marshall in the landmark case of McCulloch v.
Maryland to Justice Breyer this past June in United States v. Comstock.
Chief Justice John Marshall wrote for a unanimous Supreme Court in
the landmark case of McCulloch v. Maryland in 1819, writing 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 the 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 interpretation of
the necessary and proper clause. The most recent was this past June, 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 McCulloch, 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 decisionmaking protects our freedoms and, in
particular, the role of the American people in our democratic
government. When he writes about how our constitutional values apply to
new subjects ``with which the framers were not familiar,'' he looks to
be faithful to the purposes of the Constitution and aware of the
consequences of various decisions.

During the Civil War, in its 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 judging in the
real world.
In the same way, the Supreme Court decided more recently in Rasul v.
Bush, that there was jurisdiction to decide claims 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 recognized 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.
Real world judging is precisely what the Supreme Court did in its
most famous and admired modern decision in Brown v. Board of
Education--a landmark decision that ended the scourge and the shame of
segregation in this country. I recently saw the marvelous production of
the George Stevens, Jr., one-man play, ``Thurgood,'' starring Laurence
Fishburne. It was an extraordinary evening that focused on one of the
great legal giants of America. In fact, at one point, Justice
Marshall--the actor playing 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 [Fourteenth] 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.

Understanding the facts in context, the entire Court helped to end a
discriminatory chapter in our history, and they did it unanimously, the
Court, made up of people such as a former Senator from Alabama who had
been a member of the Ku Klux Klan, to Earl Warren, a former Attorney
General and Governor, and just about every other possible permeation in
between.
The Supreme Court did not limit itself to the Constitution as it was
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 women. Do any one of us want to go back to 1787 and
say this should be the rules of the game?
Real world judging takes into account that the world and our
Constitution have changed from 1788, beginning with the Bill of Rights.
It takes into account not only the Civil War but the Civil War
amendments to the Constitution, adopted between 1865 and 1870, and
every amendment adopted since then.
Would anyone today, even Justice Scalia, read the eighth amendment's
limitation against cruel and unusual punishment to allow the cutting
off of ears, a practice employed in colonial times? Of course not,
because the

[[Page S6711]]

standard of what is cruel and unusual punishment was not frozen for all
time in 1788. Does anyone dispute that most of the Bill of Rights is
correctly applied today to the States through the due process clause of
the 14th amendment? Our Bill of Rights freedoms were expressed only as
limitations on the authority of Congress. Does anyone think the equal
protection clause of the 14th amendment cannot be read to prohibit
gender discrimination? Remember, when it was written, the drafters
obviously did not have women in mind. But does anybody think this does
not make it very clear that our laws should apply equally to men and
women today?
The Constitution mentions our Armed Forces, but there was no Air
Force when the Constitution was written. Does anyone doubt that our Air
Force is encompassed by the Constitution, even though no Framer had
them in mind when the Constitution was being ratified? Of course not.
Likewise, in its interpretation of the commerce clause and the
intellectual property provisions providing copyright and patent
protection for writings and discoveries, the Supreme Court has sensibly
applied our constitutional principles to the inventions, creations, and
conditions of the 21st century. Thomas Jefferson and James Madison may
have mastered the quill pen, but they did not envision modern computers
or phones or smart phones or satellites.
The first amendment expressly protects freedom of speech and the
press, but the Supreme Court has applied it, without controversy, to
things that did not exist when the first amendment was written, such as
television, radio, and the Internet. Our Constitution was written
before Americans had ventured into cyberspace or outer space. It was
written before automobiles or airplanes or even steamboats. Yet the
language and principles of the Constitution remain the same as it is
applied to new developments. Our privacy protection from the fourth
amendment has been tested, but it has survived because the Supreme
Court did not limit our freedom to tangible things and physical
intrusions but decided to ensure privacy consistent with the principles
embodied in the Constitution.
There are unfortunately occasions in which the current conservative
activist majority on the Supreme Court departs from the clear meaning
or purpose of the law and even its own precedents. One such case, the
Ledbetter case, would have perpetuated unequal pay for women, by using
a rigid, cramped reading of a statute which defied congressional
intent. We corrected that decision by statute. Now there is the Gross
case that would make age discrimination virtually impossible to prove.
That erroneous decision, which disregarded the court's own precedent,
should also be corrected.
And, of course, the Citizens United case wrongly reversed 100 years
of legal developments to unleash corporate influence in elections. A
number of us are trying to correct some of the excesses of that
decision with the DISCLOSE Act, but Republicans have filibustered that
effort, and will not allow the Senate to consider corrective
legislation to add transparency to corporate electioneering.
Frankly, I am left to wonder whether some of the current members of
the conservative activist majority on the Supreme Court would have
supported the decision in Brown v. Board of Education had they been
members of the Supreme Court in 1954. They turned that decision upside
down with their decision just a few years ago in the Seattle school
desegregation case. Theirs was an ideological decision not based on
that magnificent precedent, but undermining it.
It took a Supreme Court that, in 1954, understood the real world to
see that the seemingly fair-sounding doctrine of ``separate but equal''
was in reality a straightjacket of inequality and offensive to the
Constitution. All Americans have come to respect the Supreme Court's
unanimous rejection of racial discrimination and inequality in Brown v.
Board of Education. That was a case about the real world impact of a
legal doctrine.
But just 3 years ago, in the Seattle school desegregation case, we
saw a narrowly divided Supreme Court undercut the heart of the landmark
Brown v. Board decision. The Seattle school district valued racial
diversity, and was voluntarily trying to maintain diversity in its
schools. By a 5-4 vote of conservative activists on the Supreme Court,
this voluntary program was prohibited. That decision broke with more
than a half century of equal protection jurisprudence and set back the
long struggle for equality.
Justice Stevens wrote in dissent that the Chief Justice's opinion
twisted Brown v. Board in a ``cruelly ironic'' way. Most Americans
recognize that there is a crucial difference between a community that
does its best to ensure that its schools include children of all races,
and one that prevents children of some races from attending certain
schools. Experience in the real world tells us that. Justice Breyer's
dissent criticized the Chief Justice's opinion as applying an ``overly
theoretical approach to case law, an approach that emphasizes
rigid distinctions . . . in a way that serves to mask the radical
nature of today's decision. Law is not an exercise in mathematical
logic.''

Chief Justice Warren, a Justice who came to the Supreme Court with
real world experience as a State attorney general and Governor,
recognized the power of a unanimous decision in Brown v. Board. The
Roberts Court, in its narrow desegregation decision 2 years ago,
ignored the real world experience of millions of Americans, and showed
that it would depart from even the most hallowed precedents of the
Supreme Court.
Considering how the law matters to people is a lesson that Elena
Kagan learned early in her legal career when she clerked for Justice
Thurgood Marshall. In her 1993 remarks upon the death of Justice
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 will 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 criticize 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 Justice O'Connor, Justice Souter, and
Justice Stevens--each one nominated by a Republican President, each one
being Justices I voted for. There is more to serving the country as a
Supreme Court Justice.
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.
It seems some want the assurance that a nominee to the Supreme Court
will rule the way they want, so 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, only the third
woman to be nominated to the Supreme Court, 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 the real basis of that
discontent is that the nominee will not guarantee a desired litigation
outcome. That is not what I want. I want an independent judiciary. I do
not want a

[[Page S6712]]

judiciary that will tell me way in advance exactly how they will rule.
I want them independent.
Of course, that is not judging. That is not even umpiring. That is
fixing the game, and that is wrong. It is conservative activism plain
and simple. 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. Solicitor General
Kagan was right to reject that as ``robotic.''
It is the kind of conservative activism we saw when the Supreme Court
in the Ledbetter case 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 Court's
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 doing the
hard work of judging required of the Supreme Court. In practice, this
means we want Justices who pay close attention to the facts in every
case that comes before them, to the arguments on both sides, to the
particular language and purposes of the statutes they are charged with
interpreting, to their own precedents, and to the traditions and
longstanding historical practices of this Nation.
Applying these factors would reflect an appreciation for the real
world ramifications of their decisions. Judging is not just textual and
it is not just automatic. If it were, we could have a computer do the
judging. If it were, important decisions would not be made 5 to 4. A
Supreme Court Justice is required to exercise judgment but should
appreciate the proper role of the courts in our democracy.
The resilience of the Constitution is that its great concepts, these
wonderful phrases in the Constitution, are not self-executing. There
are constitutional values that need to be applied. Cases often involve
competing constitutional values. So when the hard cases come before the
Court in the real world, we want--and we actually need--Justices who
have the good sense to appreciate the significance of the facts of the
case in front of them as well as the ramifications of their decisions
in human and institutional terms.
I expect in close cases that hard-working and honest Justices will
sometimes disagree about results. I don't expect to agree with every
decision of every Justice. I understand that. I support judicial
independence. I noted I voted for Justice Stevens and Justice O'Connor
and Justice Souter, who were all nominees of Republican Presidents. I
knew I would not agree with all of their decisions but I respected
their approach to the law and their independence.
A few days before Independence Day, the Senate Judiciary Committee
was able to complete its hearing on the nomination of Elena Kagan to be
an Associate Justice of the Supreme Court of the United States. After
opening statements on Monday afternoon, June 28, we were able to
complete the questioning of the nominee on Tuesday, June 29, and
Wednesday, June 30. We proceeded for 10 hours on Tuesday, and were able
to complete most of the first round. We returned on Wednesday to
complete the remainder of the first round, a second round, and a third
round for those who requested additional time to question Solicitor
General Kagan. We also held the traditional closed session and held the
hearing record open for members of the committee to submit additional
questions to Solicitor General Kagan.
Out of respect for the Senate observances honoring Senator Byrd, we
reconvened at 4 p.m. on Thursday, July 1. We heard testimony from
representatives of the American Bar Association, and 14 members of the
public invited by the Republican minority and 10 invited by the
majority. I especially thank Senators Cardin, Kaufman, and Schumer for
sharing the duty of chairing our proceedings on Thursday, which
extended past 8 p.m., long after the last Senate vote of the week.
In my opening statement at the hearing, I urged the nominee to engage
with the Senators and she was, in fact, engaging. I also urged
Solicitor General Kagan to answer our questions about her judicial
philosophy. I think that she was more responsive than other recent
nominees, and that she provided more information than was shared at
other Supreme Court hearings in which I have participated. Of course,
some of the questions attempted to solicit indications as to how she
would rule in cases likely to come before the Supreme Court. Solicitor
General Kagan appropriately avoided such attempts but displayed a keen
understanding of the complex set of legal issues that come before our
highest Court.
I was disappointed that one line of attack against Elena Kagan was to
disparage Thurgood Marshall. I appreciated the statements of Senators
Cardin and Durbin in defense of this towering figure of American law. I
commend the columns written by Stephanie Jones, the daughter of Judge
Nathan Jones; Frank Rich; Dana Millbank; Margaret Carlson; Carol
Steiker; and, of course, Thurgood Marshall, Jr. In addition, editorial
pages, blogs and reports rejected this ill-advised efforts. It is a
strength and a blessing that Elena Kagan clerked for Justice Thurgood
Marshall.
I remember Justice Marshall. The caricature of him by some at the
Kagan confirmation hearing was wrong. Knowing him, I suspect that when
he told his clerks that his philosophy was to do the right thing and
let the law catch up, he was most likely referring to his precedent-
setting career as the leading advocate of the time and not strictly
defining a judicial philosophy or approach. To the contrary, in Elena
Kagan's tribute to Justice Marshall in 1993 in the Texas Law Review,
she recalled his commitment to the rule of law. She described, as did
Carol Steiker in her column in The National Law Journal, 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. Justice Thurgood Marshall was a man of the law in the highest
sense. He understood the Constitution's promise of equality to his
core. He relied on the law and the American justice system to overcome
racial discrimination.
So I was deeply 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. He was disparaged at his confirmation hearing to the
Supreme Court. His confirmation to the United States Court of Appeals
to the Second Circuit, to be Solicitor General, and to the U.S. Supreme
Court were delayed and made difficult at the time, but I had hoped and
thought those dark days were behind us.
The attacks on Justice Marshall during Elena Kagan's confirmation
hearing were particularly striking. On the first day of the hearings
Republican members of the Judiciary Committee mentioned Justice
Marshall 35 times. They did not do so to praise him or his
contributions to America's historic effort to overcome racial
discrimination. Rather, they pilloried him as if someone who functioned
outside the mainstream of American constitutional law. In fact, he did
as much as any American in the last century to make sure America lived
up to its promise. He moved America forward, toward a more perfect
union. On that day, however, they were trying to penalize Elena Kagan
because as a young lawyer she clerked for him on the U.S. Supreme
Court.

[[Page S6713]]

Two current Justices also clerked for Supreme Court Justices--Chief
Justice John Roberts and Justice Stephen Breyer. That Chief Justice
Roberts clerked for then-Justice Rehnquist was viewed by Republicans as
a credential and a positive just a few years ago. Judge Douglas
Ginsburg of the DC Circuit and Judge Ralph Winter of the Second Circuit
each clerked for Justice Marshall as young lawyers. They were not
criticized during their confirmation hearings for having done so; far
from it.

Thurgood Marshall was perhaps the most influential lawyer of the 20th
century. He dedicated his life to the rule of law. He, and the
dedicated and talented team of lawyers with whom he worked at the
NAACP, did not engage in violent protests but sought to ensure the full
equality of all Americans by appeal to American justice and our
Constitution. They brilliantly and courageously argued their claims on
behalf of their clients. They bettered America's soul. Beginning in the
late 1930s, their cases eventually led to the overturning of the
misguided 1896 decision in Plessy v. Ferguson and the dismantling of
State-mandated segregation of the races in public facilities. When the
Supreme Court unanimously agreed with Thurgood Marshall's argument in
the landmark case of Brown v. Board of Education that State-mandated
segregation of the races in public school violated the Constitution, it
was vindication of the rule of law. Brown was one of the 29 cases that
Thurgood Marshall won out of the 32 cases that he argued as a Supreme
Court advocate. Justice Marshall's record of advocacy before the
Supreme is unsurpassed and not likely to ever be matched.
Thurgood Marshall's life was lived in the law, not outside it. As a
Justice, he was the embodiment of what the rule of law can achieve. He
was a giant in the law. For good and enduring reason, Thurgood Marshall
is a hero not just to Solicitor General Kagan, but to countless
American lawyers, judges, Presidents, and hardworking Americans. He
should be a hero to us all.
I am concerned that the younger Americans who waited in line to
attend our confirmation hearings or who tuned in to watch them may not
understand what the mischaracterization of Justice Marshall by some at
our hearing how important it was four decades ago for President Lyndon
Johnson to nominate then-Solicitor General Marshall, to the Supreme
Court. As President Johnson said at the time, ``He is the best
qualified by training and by valuable service to the country. I believe
it is the right thing to do, the right time to do it, the right
place.''
Justices Sandra Day O'Connor, Antonin Scalia, and Clarence Thomas,
all Republican appointees, have acknowledged Justice Marshall's
greatness as a lawyer and judge. Shortly after Justice Marshall's
passing, Justice O'Connor, who had served on the Court with him, wrote:

His was the eye of a lawyer who had seen the deepest wounds
in the social fabric and used law to help heal them. His was
the ear of the counselor who understood the vulnerabilities
of the accused and established safeguards for their
protection. His was the mouth of a man who knew the anguish
of the silenced and gave them voice.

Justice Scalia remarked that Justice Marshall ``could be . . . a
persuasive force just sitting there. . . . He was always in the
conference a visible representation of a past that we wanted to get
away from and you knew that, as a private lawyer, he had done so much
to undo racism or at least its manifestation in and through
government.'' During his own confirmation proceedings, Justice Thomas
praised Justice Marshall, as ``one of the greatest architects of the
legal battles to open doors that seemed so hopelessly and permanently
sealed and to knock down barriers that seemed so insurmountable to
those of us in Pin Point, Georgia.'' These Justices recognize and
respect Justice Thurgood Marshall and his enduring impact on American
law. He made this a stronger and more inclusive Nation.
At least two Republican members of the Senate Judiciary Committee
recently said that they are not sure whether, if given the chance, they
would vote to confirm Thurgood Marshall as a Justice on the Supreme
Court. Though he had to face humiliating questioning during his own
confirmation hearings for the Court, he was confirmed by a vote of 69
to 11 in 1967. I would have hoped that as a nation we would have
progressed to acknowledge Thurgood Marshall's fitness to serve on the
Supreme Court but I am sad to acknowledge that is not so. If there are
Republicans who would now vote against the nomination of Thurgood
Marshall to the Supreme Court, it is a sign of just how far the former
party of Lincoln has changed and just how much some would like to undo
the progress made over the last century.
We 100 men and women in this body are the ones who are charged with
giving our advice and consent on Supreme Court nominations. We 100
stand in the shoes of 300 million Americans, and we should consider
whether those nominees have the skills and the temperament and the good
sense to independently assess in every case the significance of the
facts and how the law applies to those facts. I believe Elena Kagan
does meet that test.
The more judges appreciate the real world impact their decisions have
on hard-working Americans, I believe the more confidence the American
people have in their courts, and I think it is important for the
American people in a democracy to have confidence in their courts. I
have been in the Senate now with seven Presidents. I have urged
Presidents, both Democratic and Republican, to nominate people from
outside the judicial monastery because I think real world experience is
helpful to the process. The American people live not in an abstract
ivory tower world but a real world with great challenges.
We have a guiding charter that provides all Americans great promise.
The Supreme Court functions in the real world that affects all
Americans. Judicial nominees need to appreciate that simple, undeniable
fact, and they must promise to uphold the law that Americans rely on
every day for their continued safety and prosperity.
Mr. President, I see the distinguished Senator from Rhode Island, Mr.
Reed, on the Senate floor, and I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. REED. Mr. President, we are debating the President's nomination
to succeed Justice John Paul Stevens, who has served this country
admirably and with great distinction. I rise in wholehearted support of
Solicitor General Elena Kagan's nomination to be our next Supreme Court
Justice. She has had an illustrious legal career that includes clerking
for Judge Abner Mikva on the U.S. Court of Appeals for the D.C. Circuit
and Justice Thurgood Marshall on the U.S. Supreme Court; obtaining
tenure at two of the top law schools in the country, the University of
Chicago and Harvard; serving as an associate counsel in the Clinton
administration; becoming Dean of Harvard Law School; and now serving as
Solicitor General of the United States. Casting a vote on a nominee to
the Supreme Court is one of the most consequential votes we face as
Senators because no court can review the decisions of the Supreme
Court. They are the ultimate arbiters of the law and the Constitution
in this country.
The Constitution includes the Senate as an active partner, along with
the President, in this process of confirming Justices to the Supreme
Court. As stated in article II, section 2, clause 2 of the
Constitution, nominees to the Supreme Court shall only be confirmed
``by and with the Advice and Consent of the Senate.'' This confirmation
process and the Senate's role in it serves as a vital democratic check
on America's judiciary, particularly in a case where a Supreme Court
Justice will serve for a life term.
Indeed, one of the Senate's greatest opportunities and
responsibilities to support and defend the Constitution of the United
States is achieved through upholding our duty as Senators to give
advice and consent on the nominations of the President to the Federal
bench.
As I have stated before, my test for a nominee is simple and is drawn
from the text, the history, and the principles of the Constitution. A
nominee's intellectual gifts, experience, judgment, maturity, and
temperament are all important, but these alone are not enough. I need
to be convinced that a nominee to the U.S. Supreme Court will live up
to both the letter and the spirit of the Constitution. The nominee
needs to be committed not only to enforcing laws, but also to doing
justice.

[[Page S6714]]

The nominee needs to be able to make the principles of the Constitution
come alive--equality before the law, due process, full and equal
participation in the civic and social life of America for all
Americans; freedom of conscience, individual responsibility, and the
expansion of opportunity. The nominee also needs to see the unique role
the Court plays in helping balance the often conflicting forces in a
democracy between individual autonomy and the obligations of community,
between the will of the majority and the rights of the minority. A
nominee for the Supreme Court needs to be able to look forward to the
future not just backwards. The nominee needs to make the Constitution
resonate in a world that is changing with great rapidity.
Elena Kagan passes this test. She is extraordinarily qualified on the
basis of her intellectual gifts. But what is most striking about
Solicitor General Kagan, in both her academic work and her life work,
is her commitment to the Constitution.
In a speech she gave in October 2007 at my alma mater, West Point,
well before she was considered for Solicitor General or for the Supreme
Court, she stated that our Nation is most extraordinary because we, in
her words, ``live in a government of laws, not of men or women.'' She
used as a touchstone for her speech a place on the West Point campus
called Constitution Corner, which was a gift from the West Point class
of 1943, who not only served our Nation but defended the Constitution
through the rigors of World War II and beyond.
There are five plaques at this sight. One of the plaques is titled
``Loyalty to the Constitution,'' one of the principal tenets by which
every professional soldier must abide. It basically states what those
who serve in the military are keenly aware of and points to the fact
that the United States broke with an ancient tradition when it was
created. Instead of swearing loyalty to a military leader, the American
military swears loyalty to the Constitution. Interestingly enough,
although Elena Kagan never wore the uniform of the United States, she
has demonstrated this same loyalty to the Constitution throughout her
life.
I am confident she will continue to uphold and defend our
Constitution as she assumes her next role as a Justice of the Supreme
Court. During her confirmation hearings, on the role of a judge, she
said:

As a judge, you are on nobody's team. As a judge, you are
an independent actor, and your job is simply to evaluate the
law and evaluate the facts and apply one to the other as
best, as prudently and wisely as you can. You know, the
greatness of our judicial system lies in its independence,
and that means when you are on the bench, when you put on the
robe, your only master is the rule of law.

Supreme Court Justices matter, and their impact on the lives of
Americans from all walks of life can be profound. We only need to look
at a couple of the recent Supreme Court decisions to understand how
profound that impact can be.
More than four decades ago, Congress passed laws to protect women and
others against workplace discrimination. However, five Justices in the
case of Ledbetter v. Goodyear Tire gave immunity to employers who
secretly discriminate against their workers. Thankfully, we passed the
Lilly Ledbetter Fair Pay Act of 2009, which I cosponsored and President
Obama signed into law, to ensure equal pay for equal work and to
effectively and properly overturn this immunity granted by these five
Justices.
This year, five Justices in Citizens United v. Federal Election
Commission favored big corporations by ignoring precedent to bestow
upon corporations the same power as any individual citizen to influence
elections--in fact, some might argue much greater power through much
greater spending. In his dissent, Justice Stevens, who is retiring and
who will, I hope, be replaced by Solicitor General Elena Kagan, warned
that the ``Court's ruling threatens to undermine the integrity of
elected institutions across the Nation. The path it has taken to reach
its outcome will, I fear, do damage to this institution.''
On this point, the words of Lilly Ledbetter are particularly
relevant. The plaintiff in the famous case said:

We need Justices who understand that law must serve regular
people who are just trying to work hard, do right, and make a
good life for their families . . . This isn't a game. Real
people's lives are at stake. We need Supreme Court Justices
who understand that.

Elena Kagan understands this point, and she will bring this
understanding to the U.S. Supreme Court.
In addition, I am confident that Solicitor General Kagan's tenure as
Dean of Harvard Law School will serve her well as she works with her
colleagues on the Court. As Dean, she drew acclaim as a pragmatic
problem solver who could bridge ideological divides among the faculty.
Indeed, her success in leading and bringing together one of the most
contentious legal faculties in the Nation is a testament to her
interpersonal, oratory, and analytical skills--all of her skills. As
someone who had the privilege of graduating from Harvard Law School, I
can indeed confirm that it is one of the most intellectually
contentious places in the country, as it should be, because it is there
where the ideas of law, of Constitution, and of our relationships with
one another in this democracy, are vigorously debated.
The fact that she has garnered wide bipartisan support is further
evidence of her great standing. She has received the endorsement of
eight former Solicitors General from both parties, including Ken Starr
and Ted Olson; 54 former Deputy and Assistant Solicitors General of
both parties; 69 law school deans; and more than 850 law school
professors from across the country and across the political spectrum.
Just to give an example of how well regarded she is, here is what
Professor Jack Goldsmith, former Assistant Attorney General during the
George W. Bush administration, had to say:

[Elena] Kagan possesses an extraordinary knowledge of the
legal issues before the Supreme Court. Whatever else may be
said about being a law professor, it is the profession that
requires one to know legal subjects comprehensively enough to
teach them . . . What I do know is that Kagan will be open-
minded and tough minded; that she will treat all advocates
fairly and will press them all about the weak points in their
arguments; that she will be independent and highly
analytical; and that she will seek to render decisions that
reflect fidelity to the Constitution and the laws.

Clearly, she is not only well qualified, but she also has wide
bipartisan support.
Before I conclude, I wish to make one final point regarding Elena
Kagan's respect and admiration for the military. She has won praise
from students who have served our country in uniform for creating a
highly supportive environment for students who served in the Armed
Forces of the United States and who were attending Harvard Law School.
In my view, her respect and admiration for the military is sincere and
proven.
America's courtrooms are staffed with judges not machines because
justice requires human judgments. This is particularly so on the
Supreme Court. Of all the hundreds of thousands of cases filed in
American Federal courts each year, only a small percentage reach the
Supreme Court. These are the hardest of cases--cases that have divided
the country's lower courts. These are cases where one constitutional
clause may be in conflict with another, where one statute may influence
the interpretation of another, and where one core national value may
interfere with another. These cases often divide the Justices of the
Court by close margins.

Surely, the Justices on both sides of a 5-to-4 case can claim to be
following the judicial process and respecting the precedents of the
Court. What divides their opinions is the set of constitutional values
they bring to the case. Elena Kagan, in my view, brings the set of
constitutional values that, to quote the words of Lilly Ledbetter
again, will make her a Supreme Court Justice ``who understand[s] that
law must serve regular people who are just trying to work hard, do
right, and make a good life for their families.'' As Elena Kagan
herself put it, she will do her ``best to consider every case
impartially, modestly, with commitment to principle and in accordance
with the law.''
It is with great pleasure that I support the nomination of Elena
Kagan to the highest Court in the land, and I urge my colleagues to do
the same.
I yield the floor.
The PRESIDING OFFICER. The Senator from Hawaii is recognized.
Mr. AKAKA. Mr. President, I rise to speak in support of Solicitor
General Elena Kagan to be an Associate Justice on the U.S. Supreme
Court.

[[Page S6715]]

I am confident that Solicitor General Kagan is highly qualified for
this prestigious position. She has worked hard and earned a place at
the top of the legal profession.
During her career, she has held various positions across the Federal
Government that have prepared her well for this new position.
As Solicitor General since 2009, she worked on many issues currently
before the Court.
She has argued a broad range of issues--from defending Congress's
ability to protect kids from child predators--to the United States'
ability to go after those supporting terrorist organizations.
Through several different assignments in the Clinton White House,
Elena Kagan worked for the President on the challenges facing our
Nation.
She also has experience in the judicial branch, including clerkships
in the U.S. Supreme Court as well as the U.S. Court of Appeals for the
DC Circuit.
Solicitor General Kagan also spent many years as a professor of law
at the University of Chicago Law School and Harvard Law School.
As dean of Harvard Law School, she worked with the student body to
improve the quality of student life and encourage a spirit of public
service.
She also worked as a lawyer in private practice. In all, she has
spent years studying complex legal theories and debating issues.
Some of the most difficult issues end up at the Supreme Court and
each Justice needs a thorough understanding of the law.
Elena Kagan has demonstrated her knowledge of the law and I believe
she will be a successful jurist.
Her nomination to our Nation's Highest Court is something our entire
country can be proud of.
In recent years, we have taken many positive steps to make our
government a better reflection of the American people.
Solicitor General Kagan's confirmation as associate justice will
continue that progress and mark the first time the U.S. will have three
women on the Supreme Court at the same time. This is a wonderful
milestone for our country.
I was very impressed with Elena Kagan when we met earlier this year.
We talked about Hawaii and the importance of reconciliation with
Native Hawaiians.
I was impressed with her history of building consensus and bringing
people together--as well as her knowledge of the law. I know that she
will do a tremendous job upholding our Constitution as an Associate
Justice on the U.S. Supreme Court.
After receiving many letters of support for Solicitor General Kagan's
nomination--and seeing for myself her character, her intelligence, and
her legal expertise--I am pleased to support her nomination--and urge
my colleagues to do the same.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant editor of the Daily Digest called the roll.
Mr. WARNER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WARNER. Mr. President, I ask unanimous consent to speak as in
morning business for up to 8 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.