Making Emergency Supplemental Appropriations for Fiscal Year 2010--Continued

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Ms. KLOBUCHAR. I rise today to discuss the President's nomination of Solicitor General Elena Kagan to be an Associate Justice on the U.S. Supreme Court. The Supreme Court confirmation hearing for Solicitor General Kagan will begin on June 28. But my consideration of her will not begin then. As so many of my colleagues, I began considering her the day her nomination was announced because I want to learn as much as I can about President Obama's choice to fill one of the most important jobs in the land, a job as a Supreme Court Justice.

Even though there are many questions we all still need to ask this nominee, and we do that in the hearings, I would like to speak today on how she appears to me based on her initial job interview, the interview I had in my office, and the work that has been done so far to gather information about this nominee.

After meeting with her and hearing about her, I can tell you that I am very positive about her nomination. Solicitor General Kagan is an intellectual heavyweight who brings an incredibly broad variety of legal experiences to this nomination. In so many of the legal jobs that she has had, she has been a trailblazer.

In 2003 Kagan became the first woman in Harvard Law School's 186-year history to serve as dean. It is hard enough to manage lawyers, as I know from my former job as county attorney, much less manage law professors. She did it with much aplomb.

In 2009 she became the first woman to serve as Solicitor General, the chief lawyer representing the interests of the American people before the Supreme Court. One particularly interesting aspect of her background is that she has worked in all three branches of government. She served as a Supreme Court clerk, as an adviser to then-Senator Biden when he was the chairman of the Senate Judiciary Committee, and, of course, she has worked in two different Presidential administrations: in the White House Counsel's Office as a domestic policy adviser and now as Solicitor General.

When I look at her resume, I notice two things: One, she has an appreciation of how the law impacts the lives of ordinary Americans. When you are involved in considering the nitty-gritty details of different policies, when you have to figure out where to compromise to protect Americans, and where to hold firm on a piece of legislation or a position you take, you have to know exactly what the consequences of your recommendations will be. You have to think about the lives that will be impacted.

The second thing I notice is she has a track record of listening to different viewpoints and bringing people together, whether it was her track record of recruiting law talents while dean, whether it was conservative law professors or liberal law professors, or working with Senators from both parties on tobacco legislation. She has practical experience reaching out to and working with people who have very different beliefs and views than she does. That is increasingly important on a very divided Supreme Court.

Some of my colleagues have questioned whether she is fit to be a Supreme Court Justice because she has never been a judge. First, I have to wonder whether these same colleagues would have objected to putting, say, Chief Justice Rehnquist on the Supreme Court--he was not a judge before--or Justice Brandeis or Justice Frankfurter because they did not have any judicial experience. Would that have been the excuse, because they were not nominated?

In fact, more than one-third of all Supreme Court Justices in the history of this great country were not judges before. If we think about the Court right now, every single one of them came from what has been called the judicial monastery.

I think it is great that we actually have a nominated candidate that came from a different part of the world, someone who was in the private sector, someone who has worked in the U.S. Government, who has managed people, who has had to make tough decisions. I think that is a good thing. But, additionally, I think it is important that we bring someone with that kind of perspective.

Solicitor General Kagan brings so many interesting legal experiences to the table. Beyond that, her current job, Solicitor General, is actually referred to as ``the Tenth Justice'' because it is such an important position. She represents the American people before the Supreme Court. That is incredibly important training for an individual nominated to serve on the Court.

It is worth noting that the last Solicitor General who subsequently became a Supreme Court Justice was no other than Thurgood Marshall, Elena Kagan's mentor and former boss. So I hope we can put to rest this idea that only judges are qualified to be Justices because if that were the rule in this country, one-third of our Justices, so many of them great ones, as noted by people from both sides of the aisle, would never have gotten to the Court.

I also want to talk about one other issue that has come up in the 2 weeks since Elena Kagan was nominated. I wish I did not have to talk about this issue because it is not worthy of discussion in this great Chamber. It is not something we would be normally talking about with a Supreme Court Justice.

But I learned last year, during Justice Sotomayor's hearings, that Supreme Court nominations truly bring out the ``silly season'' in Washington, DC. Last year, for example, there were stories and comments, mostly anonymous it is worth noting, that questioned Justice Sotomayor's judicial temperament.

According to one news story about the topic, ``[Judge Sotomayor] develop[ed] a reputation for asking tough questions at oral arguments and for being sometimes brusque and curt with lawyers who were not prepared to answer them.'' As I said last year, where I come from asking tough questions and having very little patience for unprepared lawyers is the very definition of being a judge. As a lawyer, you owe it to the bench and to your clients to be as well prepared as you can be.

As Nina Totenberg said on National Public Radio:

If Sonia Sotomayor sometimes dominates oral argument at her court--if she's feisty, even pushy--then she should fit right in at the U.S. Supreme Court!

I think it was Justice Ginsburg during that time who commented: Well, look at Breyer. Look at Scalia. She will fit right in.

This became an issue at our hearings and she was questioned about this. I thought we had come to a time in our country where we could confirm as many gruff, to-the-point female judges as we have confirmed male judges.

Well, this year is no different. There was a lengthy article this weekend in one of our major newspapers about Elena Kagan's clothing, describing it as--I will say in rather critical terms, it talked about at length her leg-crossing style. Now I have to say, I took note of this since it was compared to my leg-crossing style.

I have to say I never thought I would be discussing this in this Chamber. But, in fact, this was a major article that stirred much commentary all over the blogs. I do not think such an article was ever written about Chief Justice Roberts. I am trying to picture this, if he was in a meeting with Senator Hatch, if there was a major article written about the two of them and who was crossing their legs and who was crossing their ankles and how they were facing each other. I do not think that happened.

Was such an article written about Justice Alito or was such an article written about Justice Rehnquist when he was being considered by this great body? It is my 50th birthday today, and I must admit, I thought we were somewhat beyond what happened to me when I was 10 years old in Beacon Heights Elementary School and decided one day to wear bell-bottom pants, flowered bell-bottom pants to fourth grade, and was kicked out of my class by Mrs. Quady. I was told: At Beacon Heights Elementary School girls only wear dresses. I had to go home and change my clothes.

Well, a lot has happened since those days in fourth grade. Now on my 50th birthday, it is my hope that as we consider the Solicitor General of the United States, Elena Kagan, she will be considered on her merits, she will be asked tough but fair questions; the questions should not be where does she shop, but, rather, does she have the first-rate intellect, unimpeachable character, and judicial temperament to join the highest Court in the land.

That should be what we are talking about at the hearing. That should be
what the press is focused on. That should be what my colleagues are to decide on. Just think about how far we have come. When Sandra Day O'Connor graduated from law school 50-plus years ago, the only offer she got from a law firm was for a position as a legal secretary.

Justice Ginsburg faced similar obstacles. When she entered Harvard in the 1950s, she was one of only 9 women in a class of more than 500, and one professor actually asked her to justify taking a place that could have gone to a man. Later she was passed over for a prestigious clerkship despite her impressive credentials. In the course of more than two centuries, 111 Justices have served on the Supreme Court. Only three have been women. If confirmed, Elena Kagan would be the fourth and, for the first time in its history, three women would take places on the bench when arguments are heard this fall. Let's focus on what matters. Let's focus on the credentials, on the qualifications, on how she answers the questions, not on how she crosses her legs.

I yield the floor.

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