Nomination of Elena Kagan to be Associate Justice of the Supreme Court of the United States--Continued

Floor Speech

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Ms. KLOBUCHAR. Mr. President, I am so honored to come to the floor with a number of women Senators to discuss the President's nomination of Solicitor General Elena Kagan to be the Associate Justice on the U.S. Supreme Court.

As is the Presiding Officer, I am a member of the Senate Judiciary Committee, and we both had the opportunity to question Elena Kagan and to listen to her brilliant and insightful responses. Everyone heard her, and no matter how anyone is voting on this nomination--although it is hard for me to understand how they could oppose her--I think there was very much consensus on this idea that she knew what she was doing, that she has done every job that she has had very well, that she has confronted very difficult situations, and that she has always been a leader and someone who can bring consensus. She consistently demonstrated the quality that some of us had already seen in her records; that is, of pragmatism and reasonableness and a consensus builder.

So I will save my remarks until later because I have been joined by the Senator from New York, Mrs. Gillibrand, who is from Elena Kagan's home State. While she may have worked in Massachusetts for quite a while, she actually came from New York. It is an honor to have Senator Gillibrand, who is also an attorney, joining us today.

I yield for Senator Gillibrand.

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Ms. KLOBUCHAR. Mr. President, I thank the Senator from New York for that enthusiastic endorsement. I like how she took on some of these criticisms that have been lodged against Solicitor General Kagan. I also understand that at least one of my colleagues who spoke out in opposition has stated that, in his words: ``I believe she does not have the gifts and qualities of mind or temperament that one must have to be a Justice.'' Well, anyone who sat through those hearings or watched them on TV, as Senator Gillibrand has pointed out, would have to disagree. Anyone would have seen an incredibly smart, intellectually engaged person who answered Senators' questions astutely and whose energy never seemed to flag. Neither did her sense of humor, I will add. She had immediate recall about every single case or constitutional doctrine that she was asked about, and to say she doesn't have the gift or quality of mind is simply ridiculous.

This is a woman who is a trailblazer: the first woman dean of Harvard Law School, first woman Solicitor General. To say she does not have the gifts or the qualities of mind to be a Justice is nothing short of ridiculous.

I next will yield for someone who knows something about having a good temperament and a good quality of mind, the Senator from New Hampshire, who is also a trailblazer in her own right: the first woman to serve as both a Governor and a Senator, Mrs. Jeanne Shaheen of New Hampshire.

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Ms. KLOBUCHAR. One thing about Elena Kagan: When you look at her series of jobs, you realize she has been in the arena as a manager, a teacher, an adviser, a consensus builder, and a lawyer. In every job, she has worked very hard and has done very well.

Her work on the front lines tells me she has the practical experience in thinking about the impact of the law and policies on ordinary people, and I think sometimes that is missing in some of these decisions. There is a case I dwell on involving prosecutions and what kind of evidence can come before the court when you are dealing with some of the DNA tests, and I disagree with the recent Court decision that actually wasn't decided on ideological grounds but I believe was decided in an impractical way. I believe Solicitor General Kagan will bring that kind of practicality to the Court. When you are involved in considering the nitty-gritty details of different policies, when you are actually in the game as a decisionmaker, as she has been, you have to figure out when to compromise and when to hold firm. You have to know what the consequences of your recommendations will be.

As a law school dean, Elena Kagan was widely credited with bringing together a faculty that was rife with division. Whether she was helping recruit talented professors from across the political spectrum or later, when she was working with Senators from both parties on tobacco legislation, she forged coalitions and found resolution between seemingly intractable parties.

It strikes me that it takes a pretty extraordinary person who, after working in the Clinton administration, still gets a standing ovation from the conservative Federalist Society; who inspires a group of 600 law students, who can be a bit cynical, to show up for a rally wearing ``I love Elena'' T-shirts; someone who earned the respect of the law professors she worked with, regardless of their ideology, a group that I would say, as I said in the hearing, can be somewhat fearless in the face of supervision.

In sum, she has had a lot of practical experience reaching out to people who hold very different beliefs, and that is increasingly important on a very divided Supreme Court. I believe that is why, when you look at the past, all the previous Solicitor Generals from the past 25 years, under Democratic and Republican administrations, support Elena Kagan's confirmation. This practical experience is also why she has the support of the National District Attorneys Association, which I used to belong to in my previous job. They actually wrote about her, saying that the National District Attorneys Association believes Solicitor General Kagan's diverse and impressive life experiences will be a welcome addition to the Court in fashioning theory that will work in practice.

One of the things that I think show the practicality of her and how she responded to our questions is when I asked her about the metaphor Chief Justice Roberts made famous at his confirmation hearing. I asked what she thought about the idea that judges were like umpires who just need to ``call balls and strikes'' and whether that was a useful metaphor. She gave an interesting and insightful response. She said the metaphor is useful in some respects but maybe not in others. It is useful because judges have to be fair and neutral like umpires and judges have to be aware that they have a powerful but limited role--that they can't legislate from the bench, they aren't elected officials. But she also said the metaphor has its limits if it suggests that judging is some kind of ``robotic enterprise,'' if it makes people think judging is an easy, automatic kind of thing because issues are always clear-cut. That isn't right, and it definitely isn't right at Supreme Court level.

Cases that come before the Supreme Court, I say, are by their very nature not clear-cut or they would not have ended up there. What is necessary is good judgment. We have to look for nominees who are going to bring that kind of good judgment to the Court.

I see I have been joined by the Senator from North Carolina, Mrs. Hagan, which rhymes with the name of our nominee, Solicitor General Kagan. We are pleased to be joined by Senator Hagan.

We have now had four women Senators here today in support of Solicitor General Kagan's nomination. We are also well aware that if she is confirmed, we will have three women on the Supreme Court when the Court goes into session in the fall--something that has never happened in the history of the United States.

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Ms. KLOBUCHAR. Mr. President, I thank the Senator from North Carolina for her comments. I like how she pointed out how Solicitor General Kagan has received support from so many people on both sides of the aisle, and then also Solicitor General Kagan's support for the military.

I remember one of the most touching points of the hearing--that long and laborious hearing--was when Elena Kagan spoke about reading a letter from a student who had been at her law school in which, after she was nominated, he actually wrote a letter to the newspaper. He served in Iraq, and he wrote a letter about how fair she was to him and her strong support for him as a soldier. She said it was the only moment during the whole leadup to the hearing, with all those things that happen, that she said she shed some tears. I will never forget that moment in the hearing.

As we consider this nomination, I want to reflect on how far we have come.

I see I have been joined by the dean of the women Senators, Senator Mikulski from Maryland.

When Sandra Day O'Connor graduated from law school more than 50 years ago, as the Senator from Maryland knows, the only offer she got back then after she graduated high up in her class from Stanford Law School, the only offer she got at a law firm was as a secretary. Justice Ginsburg faced similar obstacles. When she entered Harvard, she was only one of nine women in a class of more than 500. One professor actually asked her to justify taking that place in that law school class from a man.

I know we learned during the hearing that Solicitor General Kagan is well aware of the strides women have made. In a 2005 speech, quoting Justice Ginsburg, she described a student resolution at the University of Pennsylvania Law School. This resolution would have introduced a 25-cent per week penalty on all students without mustaches.

The women who came before Elena Kagan to be considered by the Judiciary Committee helped blaze that trail for Elena Kagan--people such as Justice Ginsburg, Sandra Day O'Connor, and Sonia Sotomayor. Although Elena Kagan's record stands on her own, she is also, to borrow a line from Isaac Newton, ``standing on the shoulders of giants.''

All the women Senators I know--both Democratic and Republican--always feel they are standing on the shoulders of giants, maybe somewhat short giants, when they see the dean of the women Senators, Senator Mikulski from Maryland, who has entered the Senate Chamber.

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Ms. KLOBUCHAR. Madam President, I think this concludes our very broad discussion about all of the fine qualifications of Elena Kagan for this job and, again, refuting the words of one of our colleagues--unfortunate words--in which he said, I believe, that she doesn't have the gifts and the qualities of mind and the temperament one must have to be a Justice.

Look at the words of so many people across this country, along so many different ideological lines--69 law school deans who wrote about her knowledge of the law and skills in legal analysis as being ``first-rate.'' They say:

Her writings in constitutional law and administrative law are highly respected and widely cited. She is an incisive and astute analyst of law, with a deep understanding of both doctrine and policy.

Listen at what the National Association of Women Judges has said:

We recognize the essential qualifications that a justice of our highest court must have: superior intellectual capacity as well as an intimate knowledge and a deep understanding of constitutional law. It cannot be seriously disputed that General Kagan brings these qualifications with her in abundance.

From the Women's Bar Association:

Solicitor General Kagan's intellect and legal acumen have been recognized by those across the political spectrum.

Of course, I already read into the Record the words of the National District Attorneys Association.

So many people have written in support of Solicitor General Kagan. But I would say that no words meant more to me than the words of our colleague, Senator Graham, who is here across the aisle. He had the courage to stand up and explain why he made the decision to support her nomination.

He made very clear that he didn't agree with every position she had ever taken or would agree with every decision that she would ever make. But he talked about our role as Members of the Senate to not be political arbiters in terms of who the judge should be but to have the role of oversight and to figure out what the qualifications are and does this person meet the qualifications and does the person have the judgment to make decisions in very difficult cases. And, as Senator Graham so eloquently stated that day during the hearing, Solicitor General Kagan--

The PRESIDING OFFICER. The time controlled by the majority has expired.

Ms. KLOBUCHAR. Makes the grade.

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