Nomination Of Elena Kagan

Floor Speech

Mr. McCONNELL. Madam President, the Judiciary Committee just wrapped up its hearings on the first day of the nomination of Elena Kagan to be an Associate Justice of the Supreme Court. These hearings will provide Senators on both sides of the aisle an opportunity to examine Ms. Kagan's record, legal experience, and background in light of the awesome responsibility that comes with a lifetime appointment on our Nation's highest Court. These hearings also provide an opportunity for the American people to focus their attention on a woman whom President Obama would like to see deciding cases on many of the most important and consequential issues we face as a people, long after the President's time in office is through.

In the near term, she would be ruling on the actions and policies of an administration of which she is now a member. So it is well worth asking why the President chose Ms. Kagan in the first place. We know the President and Ms. Kagan are former colleagues, and we know from the President himself that they are friends. We know he views her as an important member of his team and that he was especially pleased with her handling of the Citizens United case. The President is no doubt confident that Ms. Kagan shares his view that judges should be judged primarily on their ability to empathize with some over others; in other words, that she embraces the empathy standard he has talked about time and time again. But as I have said before, while empathy may be a very good quality in general, in a court of law it is only good if you are lucky enough to be the guy the judge empathizes with. In those cases, it is the judge, not the law, who determines your fate.

In a nation such as ours, conceived from its very beginning as a nation not of men but of laws, this is a very dangerous road to go down. In the case of President Obama's previous nominee to the Supreme Court, Senators had many years of court cases to study in determining whether Sonia Sotomayor could be expected to treat everyone who came before her equally, just as Americans would expect in a judge and just as the judicial oath requires. In Elena Kagan's case, however, no such record exists. She has no experience as a judge, nor does she have much of a record as a legal practitioner. This is one of the reasons some have raised Ms. Kagan's experience as an issue.

It stands to reason that in order to know what kind of judge John Roberts or Sam Alito or Sonia Sotomayor would be, it was useful for Senators from both parties to look at the kind of judge these nominees had been. Since Ms. Kagan has not had the judicial or private practice experience common to most modern-day nominees, it is all the more important that we look more closely at the kind of experience she has had. A review of that experience reveals a woman who has spent much of her adult life not steeped in the practice of law but in the art of politics. To be more specific, when we look at Elena Kagan's resume, what we find is a woman who spent much of her adult life working to advance the goals of the Democratic Party.

As a young woman in college, she spent one summer working 14 hours a day for a liberal Democratic candidate for the Senate, and when her candidate lost, Ms. Kagan wrote that she believed the ``world had gone mad, that liberalism was dead.'' If all we had were the comments of an impassioned young student, they would not be worth all that much. Few of us would want everything we wrote as a college student put up on an overhead projector.

Yet the trajectory of Ms. Kagan's career, the testimony of those who know her work well, and the recently released records of her time as a political adviser in the Clinton White House, suggest otherwise. Taken together, they suggest someone, as one news story put it, who long after college and even at the highest peaks of political influence was ``driven and opinionated, with a flare for political tactics. .....''

What else do we find in Ms. Kagan's resume? Well, she volunteered for the Dukakis Presidential campaign, working as an opposition researcher to defend the then-Governor of Massachusetts from attacks, and to look for ways to attack the Republican opposition. As an aide to President Clinton, Ms. Kagan did not serve mostly as an attorney, as she put it, but as a policy advocate, frequently looking for ways to advantage Democrats over Republicans.

If you believe the role of a judge is to be an impartial arbiter, these things cannot be ignored. Indeed, Members of both parties should appreciate the importance of confirming judges who are more interested in what the law says than in how the law can be used to advantage any one individual, party, or group. It is to no one's advantage if judges cannot be expected to rise above politics. As the chairman of the Judiciary Committee once put it:

No one should vote for somebody that's going to be a political apparatchik for either the Democratic Party or the Republican Party.

If there is one thing we can all agree on, it is that politics should end at the courtroom door.

So this is one of the key questions Senators will be looking to answer as these hearings proceed: Is someone who has done the kind of political work Ms. Kagan has done in her career more or less likely to restrain her political views if she were confirmed to a lifetime position on the country's highest Court?

Ms. Kagan has never made a secret of her professional aspirations. She has cultivated all the right friendships along the way, which is all well and good. No one ever rose to the heights of their profession by ignoring or upsetting the people who could get them there. But the question before us is whether Ms. Kagan's political views would be more or less constrained by the Constitution she swears to uphold once she reaches her goal.

Some of Ms. Kagan's supporters wish us to focus on her personality. They wish to point out she has a knack for making friends and for getting along well with different kinds of people in academia and among the political class. Once again, these are all fine qualities. No one has any doubt that Ms. Kagan is bright and personable and easy to get along with. But the Supreme Court is not a dinner club. If getting along in polite society were enough to put somebody on the Supreme Court, then we would not need confirmation hearings at all.

The goal here is not to determine whether we think someone will get along well with the other eight Justices; it is whether someone can be expected to be a neutral and independent arbiter of the law rather than a rubberstamp for any administration.

These are just some of the questions Senators will be asking and which Ms. Kagan will be expected to answer. No one should have any doubt that Republicans will treat Ms. Kagan with the same respect and professionalism they treated Judge Sotomayor. But questions must be answered and clear judgments must be made.

Madam President, I suggest the absence of a quorum.

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