Nomination Of Elena Kagan To Be Associate Justice Of The Supreme Court Of The United States - Continued

Floor Speech

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Mr. CRAPO. Mr. President, I also rise to discuss President Obama's nomination of Elena Kagan, Solicitor General, to serve on the U.S. Supreme Court. I agree very strongly with the remarks made by my colleague who has just indicated there is a strong concern about the continuation of a pattern of increasing judicial activism in our country, which we definitely do not need to perpetuate on the highest Court of our land.

I appreciate the work that has been done by my colleagues on the Senate Judiciary Committee to examine this nomination and to hold thorough hearings. There is no doubt that Ms. Kagan's educational resume is impressive, with a degree from Princeton and from Harvard Law School. It is unfortunate that the Senate confirmation process has reached the point, though, where nominees are no longer comfortable candidly discussing their judicial philosophy and views on key issues, especially when the nominee herself decries this development prior to being nominated.

To date, I have received more than 1,500 letters and e-mails and phone calls from my Idaho constituents, overwhelmingly in opposition to Elena Kagan's nomination. Many of the concerns raised in the correspondence I have received mirror concerns I also have about her nomination. It was my hope, through the committee hearings and questionnaires and in my own personal meeting with Ms. Kagan, that my concerns and those of my constituents could be resolved. As Ms. Kagan stated in her committee testimony, because she has not had prior experience as a judge, my Senate colleagues and I must assess her nomination based on her other career experiences. Therefore, we must evaluate a career that has been focused largely in her role as a policy advocate and political adviser and whether she would carry this political advocacy with her to the Court. I would like to discuss, in that context, some of my areas of concern--first of all, the broad area of judicial activism.

I am concerned about Ms. Kagan's background in political advocacy and activism and how her previous statements suggest her willingness to bring that activism to the bench. Rather than pursuing a path of judicial restraint, carrying out a limited role in interpreting the Constitution, Ms. Kagan's writings and testimony suggest that she sees the Supreme Court as a body that must lead the Nation and have the freedom to change the law in response to ``new conditions and new circumstances.''

As dean of the Harvard Law School, Ms. Kagan used her position to lead the school in a direction not based on the law but based on her own personal policy preferences when she denied military recruiters equal access to the students at Harvard Law School, complying with the law only when forced to do so by the Court.

It seems that Ms. Kagan has an extremely broad view of the powers of all branches of the Federal Government and does not seem to respect the traditional limits the Constitution places on each of those branches. If the Constitution requires that a certain outcome can only be achieved through the actions of the legislative branch and if the legislative branch fails to take those actions, it does not mean the executive or judicial branch can then have the opportunity to independently take those actions or achieve those policy objectives. I am not convinced Ms. Kagan respects that constitutional separation of power.

She has gone so far as to cite Israeli Chief Justice Aharon Barak as her ``judicial hero,'' even though Judge Barak is widely regarded as one of the most activist judges in the world.

The Framers of the Constitution wisely, clearly, and intentionally set limits on the powers of the Federal Government. The Framers also set forth a method with an appropriately high threshold for expanding or curtailing those powers. That method for expanding or curtailing the powers of the government is the constitutional amendment process. Judges must respect the limits placed on the government by our Constitution and must not try to circumvent the constitutional amendment process by seeking other opportunities to expand the powers of the Federal Government to meet their own personal policy preferences. I am not convinced Ms. Kagan respects that limit in our Constitution and the responsibility to have limited judicial activism and interpret our Constitution as it was intended.

I also have a very specific concern on a specific issue. In fact, this is the same concern I had when we were presented with the President's nomination of the last nominee, Sonia Sotomayor, to our Court; that is, the second amendment right to bear arms--a specific provision in the U.S. Constitution which has been a very controversial and debated provision in recent years in the United States.

On June 26, 2008, the Supreme Court of the United States affirmed, in the District of Columbia v. Heller, that the second amendment to the Constitution guaranteed an individual's right to keep and bear arms for self-defense purposes. This landmark ruling finally established that the right to bear arms in the second amendment is an individual right but left open the question of whether this right in the second amendment applies to the States rather than just to Federal enclaves such as the District of Columbia.

For those of us who believe in the right to law-abiding citizens to protect themselves, the Court's ruling in Heller marked a new beginning, especially for those who believe the second amendment to our Constitution gives Americans an individual right to bear arms. For too long, many law-abiding Americans were told by their elected representatives and by some courts that the Constitution did not necessarily guarantee an individual's right to own a firearm, denying citizens the right to protect themselves, their property, and their families.

Soon thereafter, though, a case entitled McDonald v. Chicago made its way through the court system, in which a Federal district court and a circuit court of appeals ruled that the very severe restrictions on second amendment rights in two Illinois municipalities were constitutional because Heller only applied to the rights of those living in Federal enclaves such as Washington, DC.

On June 28, 2010, the Supreme Court also overturned that decision, affirming that the 2nd amendment, like most of the provisions of the Bill of Rights, is applicable to the States via incorporation principles derived from the 14th amendment. The Court affirmed that individual rights established in Heller did not just apply to those living in Federal enclaves such as Washington, DC; they ruled they also apply to all law-abiding Americans who wish to keep and bear arms for self-defense. It is now firmly established by these two rulings from our highest Court that our Constitution guarantees an individual right to keep and bear arms for self-defense purposes no matter where you live.

All of this brings us to our nominee, Ms. Kagan, and the question before the Senate with regard to her nomination. Those of us who believe in an individual's right to keep and bear arms have a responsibility to ensure that hostility to the second amendment does not find home in the hands of the Supreme Court.

With no judicial record to review, Ms. Kagan invited Senators to glean what we can from the body of her work, her statements, her academic life, and the policies for which she has actively advocated during her career, including her Supreme Court clerkship and her later career in political activism.

We took her at her invitation to see how her past reflected her views on the issue of second amendment rights. After discussing this issue with her personally, fully reviewing her past actions in relation to the second amendment, and evaluating her statements before the Judiciary Committee, I am convinced she does not believe the second amendment reserves to all Americans a strong and broad right to bear arms.

To cite some well-known examples, as a Supreme Court law clerk, Ms. Kagan wrote that she was ``not sympathetic'' to a challenge to Washington, DC's, ban on firearms. After the Supreme Court struck down certain provisions of the Brady law in Printz v. United States, Ms. Kagan, who was then serving on President Clinton's staff, worked to reimpose those unconstitutional provisions by Executive order, without the approval of Congress and contrary to the ruling of the Court. When the McDonald case came before the Supreme Court, Ms. Kagan, who was then the Solicitor General of the United States, did not even see it necessary to file a brief in support of the second amendment.

When asked about her position, Ms. Kagan has stated that she accepts the Heller and McDonald cases as settled law. But she has also made it clear that in her opinion these two cases leave much of the detail as to what this right entails to future court interpretation. This is very similar to what now Justice Sotomayor said when she was before the U.S. Senate for confirmation.

As a judge on the Second Circuit Court of Appeals, then-Judge Sotomayor ruled on a case that was very similar to and, in fact, was later incorporated into the Chicago case, Maloney v. Cuomo. In that ruling, then-Judge Sotomayor ruled that Heller only guaranteed an individual right to keep and bear arms for residents of Federal enclaves. Her explanation was that Heller answered ``a different question'' than Maloney and relied on a precedent from 1886 to do so.

Pressed about Heller at her Senate hearings, Judge Sotomayor stated that she accepted that Heller was now ``settled law.'' Yet when the McDonald case came before the Supreme Court, Justice Sotomayor voted against it, joining with the dissenting opinion, stating that ``in sum, the framers did not write the Second Amendment in order to protect a private right of self defense.''

The Supreme Court's decisions in Heller and McDonald were important milestones for establishing the second amendment right to bear arms, but they were long overdue. Countless law-abiding Americans were denied their constitutional rights to keep and bear arms for way too long. It is imperative that the next Supreme Court Justice fully understand and accept and support these rights. I am not convinced that Ms. Kagan does, and that causes me great concern.

Similar to now Justice Sotomayor, Ms. Kagan has stated that she accepts Heller and McDonald as settled law. But that does not mean she would not vote to overrule them if an opportunity presented itself. As she herself has said, that also does not define the scope and breadth of this right, which will fall to future Court decisions. A Supreme Court hostile to the Heller and McDonald decisions or a Supreme Court with a narrow view of the right to bear arms protected by the second amendment could severely limit or restrict that right. As I have said, I do not believe Ms. Kagan believes in the strong and broad right to bear arms that I do or that the majority of Idahoans do.

These concerns have also been expressed by our ranking member on the Senate Judiciary Committee, Senator Sessions, who noted:

Ms. Kagan's record regarding the Second Amendment leaves little doubt that she will be hostile to the rights of law-abiding citizens to own and possess firearms.

For these reasons--her activist philosophy and her position that I expect we will see on the second amendment right to bear arms--I cannot vote to confirm her to the highest Court of our land.

Mr. President, I take the responsibility of confirming Supreme Court Justices very seriously, and my decision was not reached lightly. Judges take an oath to ``administer justice without respect to persons, and do equal right to the poor and to the rich.''

My review of Ms. Kagan's record gives me reason to question whether she will abide by that standard. Her statements, actions, and writings throughout her public life suggest a vision for the Court that is not restrained by the Constitution but that has a responsibility in being activist in reaching policy goals. As such, I must vote against her nomination to sit on the highest Court in our country.

Thank you, Mr. President.

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