Executive Session

Floor Speech

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Ms. MURKOWSKI. Mr. President, on July 2, following the conclusion of the hearings on Elena Kagan's nomination to serve as an Associate Justice of the U.S. Supreme Court, I informed my colleagues and my constituents in the State of Alaska that I could not support her nomination. I decided to express my views at the time in summary form, knowing I would get many questions about Ms. Kagan in the course of my travels during the Independence Day recess, when I was up in the State.

Many of the Alaskans I encountered during that trip and in subsequent visits around Alaska indicated their concerns about Ms. Kagan's qualifications to serve and indicated they shared those same concerns. That said, Alaskans are certainly a diverse and an independent people who are accustomed to speaking their minds. It is fair to say I have also heard from those who strongly support Solicitor General Kagan's nomination. I respect both viewpoints. But I am required by our Constitution to make an up-or-down decision.

I regard a Senator's vote to confirm or not to confirm a Supreme Court nominee as one of the most important responsibilities bestowed on this body by the U.S. Constitution. I believe it is a Senator's responsibility to evaluate each nominee on his or her merits, consider the record with great reflection, and explain her conclusions to the body and to her constituents.

I come to the floor to expand the thoughts I expressed earlier about the Kagan nomination, as well as to offer some observations about the composition of the Court as we go forward.

As I observed in early July, there is no doubt--no doubt in my mind--that Elena Kagan is a gifted teacher of the law. Watching the confirmation hearings, I was impressed with her command of the Supreme Court's precedents and her ability to explain those precedents in a language nonlawyers can understand.

In the course of those hearings, Elena Kagan vowed to respect Supreme Court precedent. But she offered little insight into the circumstances that might lead her to overturn established precedent and even less insight into how she would approach those cases when precedent was not clearly established.

Most troubling, Ms. Kagan's responses to the questions posed to her in the Judiciary Committee indicated gaps in her understanding of the Constitution. Indeed, the most glaring of these gaps involved the right to keep and bear arms, guaranteed to law-abiding Americans under the second amendment. This is a matter of great significance to my constituents in Alaska. So I find myself compelled to discuss it at some length.

There was a colloquy between our colleague, Senator Grassley, and Solicitor General Kagan that sticks very clearly in my mind. Senator Grassley began his question by observing that the Supreme Court in the Heller case concluded that the second amendment involved an individual right to possess firearms, not a collective right conditioned by participants in a militia.

Senator Grassley further noted that the Supreme Court ruled in McDonald that the individual right recognized in Heller is applied to the States through the doctrine of incorporation via the 14th amendment.

Senator Grassley then went on to ask Ms. Kagan whether she personally believes that the second amendment includes an individual right to possess a firearm.

Elena Kagan did not answer the question. Her response was:

I have not had myself the occasion to delve into the history that the courts dealt with in Heller.

Senator Grassley went back again. He asked straight on:

Do you believe the second amendment conveys an individual right?

Once again, Ms. Kagan ducked the question. She said that she lacked the wherewithal to grade Heller because the case is based so much on history she never had an occasion to look at. This is very similar to the comments she expressed to my colleague from Nevada who spoke before me.

I find it difficult to accept that an individual who occupied the role of dean of Harvard Law School and Solicitor General of the United States would never have had occasion to look at the history underlying the second amendment.

My constituents in Alaska have long understood this right to be fundamental, personal in nature, and binding on both the Federal Government and the States, just as the courts in Heller and McDonald have held. I view our second amendment rights in the same way. Yet Elena Kagan evidently has not thought much about the question.

One has to wonder: Is this just a lack of preparation or does Ms. Kagan think the second amendment right is insignificant? Again, one has to wonder.

Ms. Kagan had fair and sufficient warning that she would be questioned vigorously about her views on the second amendment. Justice Sotomayor had very intense questioning on the same subject just a year ago.

I doubt Dean Kagan would accept an answer: Sorry, I am not prepared to answer the question, from one of her Harvard law students if posed the same question Senator Grassley asked.

With all due respect for the nominee, I am not prepared to accept this kind of answer from a prospective Justice of the U.S. Supreme Court. To put it perhaps a bit more bluntly, I would have expected that a constitutional law expert of Ms. Kagan's stature would have devoted some serious intellectual attention to that question at some point in her career. Truthfully, I cannot be sure she does not hold strong personal views about the second amendment--views that she is unwilling to express because they might pose an impediment to her confirmation. This is, by no means, mere speculation.

While serving as a law clerk to Justice Thurgood Marshall in 1987, Ms. Kagan had an opportunity to comment on a petition for certiorari filed by a District of Columbia resident who was charged with the possession of an unregistered firearm. The petitioner asked the Supreme Court whether the DC gun control law violated his second amendment rights.

Ms. Kagan dismissed his argument. In a note devoid of any legal analysis, she simply told Justice Marshall: ``I am not sympathetic.'' Not sympathetic suggests some knowledge of the second amendment. If Ms. Kagan were uncertain whether she knew enough about the second amendment to make such a recommendation to Justice Marshall, perhaps she might have done more research.

One is also left to wonder whether Solicitor General Kagan was unsympathetic to the view that the second amendment applies to the States when the Justice Department decided it would not file a brief in the McDonald case. We may never know the answer to this question because the deliberations of the Solicitor General's Office are privileged.

The conclusion I draw from all this is that Ms. Kagan is, at best, uninterested in the second amendment at this point in her career. At worst, she is unsympathetic to the millions of Americans who, similar to this Senator, believe the second amendment is one of the most important of our constitutional liberties. On this basis alone, I cannot support her lifetime appointment to the highest Court in the land.

But this is not the only basis on which I find I must vote against the nominee. If confirmed to serve on the Supreme Court, Elena Kagan will be one of the least experienced Supreme Court Justices in our Nation's history. It is often observed that one need not have judging experience to sit on the Supreme Court. But all the Supreme Court Justices who did not have judging experience had extensive courtroom litigation experience, and Elena Kagan has neither. While it is true she spent a brief period of time as a junior associate in a prestigious Washington law firm, she has spent most of her professional career as a law professor, a university administrator, and as a political appointee focused on matters of public policy.

Ms. Kagan's extensive experience as a policy adviser, when compared with her sparse experience as a litigator, should concern all of us.

During her confirmation hearings, Ms. Kagan was asked repeatedly whether she could set aside her interest and experience in matters of public policy and refrain from legislating from the bench. She said she could. Time will tell whether the benefit of the doubt is justified. However, Ms. Kagan's answer to questions concerning her willingness to defer to unelected bureaucrats on questions of environmental law is quite troubling to me. History demonstrates that agencies at times are quite activist in interpreting the gaps Congress intended them to fill through regulations. It is well known throughout this body that I do not believe Congress ever intended for the EPA to set climate policy through Clean Air Act regulations.

On two occasions before the Judiciary Committee, Ms. Kagan expressed the view that it is legitimate for courts to give great deference to Federal agencies as they interpret congressional mandates.

I understand it is settled precedent for Federal courts to defer to administrative agencies in appropriate cases. However, I also think this administration's activism demands a more skeptical look at agency rulemaking exercises. Ms. Kagan, on the other hand, enthusiastically endorsed the position that the decisions of unelected bureaucrats deserve great deference because Federal agencies have expertise and are accountable to the elected Executive. I think this approach will continue to diminish the role of Congress in lawmaking and will result in less accountability to the electorate, not more, as Ms. Kagan suggests.

I am also concerned about the deference that a Justice Kagan might give to international law in interpreting the Constitution and the laws of the United States. Perhaps there is a limited role for the consideration of international or foreign law when the issues posed in the case unavoidably turn on the interpretation of a treaty or a foreign law. But unlike Ms. Kagan, I would not think that a Federal judge at any level should cite foreign and international law in their decision simply because the judge is open to ``good ideas wherever they may come from.''

When the Senate inquires as to whether a nominee is qualified for the Court, it is asking a very specific question: Does the nominee understand and is she prepared to assume the role of an impartial judge in our constitutional system?

I have reluctantly come to the conclusion that Elena Kagan does not rise to this standard. During her confirmation hearings, Ms. Kagan exhibited charm and wit, even as she weaved her way through the serious questions that were put before her. I would have preferred a bit less cleverness and a lot more serious reflection.

As I reflect back upon the record before me, as I think about the way Ms. Kagan answered the second amendment questions posed to her, her lack of substantive legal experience, her comfort with the judgments of unelected bureaucrats, her acceptance of the use of international law as persuasive authority in U.S. court decisions, I am not comfortable with this nominee.

I understand others of my colleagues may not share this view and that conventional wisdom holds that Elena Kagan will be confirmed to the Supreme Court. I would like to close with a few observations about the composition of the Court going forward.

Ms. Kagan, similar to this administration's last nominee, Justice Sotomayor, is a native of New York City. Although she spent a portion of her career in Chicago, most of her career has been spent inside the beltway of Washington, DC, and Cambridge, MA.

If Elena Kagan is confirmed, six of the nine Supreme Court Justices will be from the Northeast United States, and only 3 law schools of the 199 law schools accredited by the American Bar Association will be represented on the High Court.

Our colleague, Senator Feingold, took note of this during the confirmation hearings. He made reference to a question he received from one of his constituents in a townhall meeting. That constituent asked why nominees to the Supreme Court always seem to be from the east coast when we have plenty of fine candidates in the Midwest. Senator Feingold followed up by asking Ms. Kagan this question:

How will you strive to understand the effects of the Supreme Court's decisions on the lives of millions of Americans who don't live on the east coast or in our biggest cities?

That same question is on my mind today, as it was last summer when I spoke on the nomination of Justice Sotomayor.

I welcome the fact that this administration has substantially increased the representation of women on the High Court. Yet it is of greater significance to me that the administration has not increased the representation of people from the West or from rural backgrounds on the Court. I would suggest that given the composition of the Supreme Court at this point in our history, it is important for the Justices to venture beyond the bench and the beltway. It is important that they get to know how Americans with different backgrounds than theirs think about their country. And I might suggest that they come and visit us in Alaska.

If Elena Kagan is confirmed to the Supreme Court, as I understand she likely will be, I wish her well in the discharge of her crucial duties. The liberties we treasure dearly will depend on her wise and thoughtful judgments.

With that, Mr. President, I thank the Chair, and I yield the floor.

The PRESIDING OFFICER. The Senator from Georgia.

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