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

Floor Speech

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Mr. CORNYN. Madam President, Solicitor General Elena Kagan has been nominated to fill the upcoming Supreme court vacancy left by the retirement of Justice John Paul Stevens.

I know of few, if any, responsibilities of the Senate that are more important than the confirmation process providing, in the terms of the Constitution, ``Advice and Consent'' to the nomination of an individual to serve for life on the U.S. Supreme Court.

There are two constitutional responsibilities that are invoked every time a nominee is chosen. One is by the President of the United States. It is his prerogative to choose whomsoever he wishes. But that is not the end of it. The second constitutional duty that is invoked anytime a vacancy occurs and a nomination is made is that of the Senate to provide, again in the terms of the Constitution, ``Advice and Consent'' on the nomination.

That is what we are engaged in doing now--in deciding whether that advice and consent should be, yes, she shall serve, she shall be confirmed or, no, she should not be confirmed.

We know judges are different. In the words of the high school civics class, we are called the three branches of government, and all three serve different functions. But the role of the judge is entirely different from the role of a Senator or the role of the President because they are nominated and appointed to serve for life and protected from having to run for office and seek election. They are given a limited but very important role in our government; that is, to render impartial justice, to make decisions based on the law, not based on perhaps their own political or ideological preference or a political agenda.

I think it is very important that this process be fair and dignified, and I commend not just the chairman of the Judiciary Committee, Senator Leahy, but the ranking member, Senator Sessions of Alabama, who is in the Chamber, for making sure this nominee got the kind of confirmation hearing in the Judiciary Committee that, frankly, she deserves and that every nominee deserves whether or not they are confirmed. But at the same time, we need to make sure in addition to a dignified and fair process that it is thorough and it is careful and it is comprehensive.

It is vital, in my view, to recall the core principles that should guide the Senate in carrying out its constitutional duty because I think today there is more of a sense than there has been at any other time in my adult life that the Federal Government simply does not recognize any constraints imposed upon its authority under the Constitution. Frankly, I think there is a widespread feeling across the country that the Federal Government--the National Government--believes it is, in effect, the only government in our country anymore and that the States and local governments are just the servants of the National Government.

But that isn't, of course, how our Framers of the Constitution conceived of this unique form of government known as federalism, where the Federal Government, under our Constitution, is a government of delegated--or sometimes it is called enumerated--powers, and all rights--or all power--not given to the Federal Government are reserved, under the terms of the tenth amendment of the Constitution, to the people and to the States.

I am afraid that Washington, DC, and particularly this Congress at this particular time, seem to have that turned around. Unfortunately, I worry that a Supreme Court Justice who does not recognize the limited nature of the authority given to the Federal Government, and who isn't willing to enforce it, is not qualified to serve on the U.S. Supreme Court.

As the Federalist Papers remind us in Federalist 78:

The courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body.

That is a little archaic--that kind of language, of course, going back a couple of centuries--but, basically, it means the people who are responsible for making policy are those who are elected and who have to stand before the people and ask for their vote; namely, the Members of Congress or the Chief Executive, the President, and not judges who are completely insulated from any political accountability for their decisions.

The only reason the Constitution gives that sort of lifetime tenure and protection from the voters is because under the Constitution judges are not supposed to be making policy but merely enforcing the law that is made by the Congress and the President. It is very important that the power to make new laws belongs to the people--we the people--and not to unelected judges.

When the Supreme Court presumes to create new rights, the Justices take away the power of the people to govern themselves through their elected representatives. It is completely turning democracy on its head--this idea of saying judges ought to be making policy even though unelected and serving with lifetime tenure and substituting their view for the views of the people and their elected representatives. That is not the way our democracy is supposed to work.

Some have disagreed over the years and embraced this concept of judicial activism. According to those who subscribe to this view, the Constitution is somehow not a written document that we can read and understand what is in it, but it has become a ``living document,'' which has changed over time, even though the words on the paper remain the same. Unfortunately, this notion of a living document often is an excuse for judges to reach a desired outcome or a result in a lawsuit. This activist view takes the power to make and change the law away from we the people and gives that power to unelected judges who are insulated from any kind of accountability for their decisions, and it lets the Supreme Court decide what rights we have and what rights we don't have, which is the opposite of what the Framers thought they were doing when they wrote our constitution and when the States ratified it.

The question raised by every Supreme Court nomination is whether the nominee believes in this activist vision for judges or whether, in contrast, they believe in a traditional role for judges. The question is, Will the nominee enforce a written constitution and laws passed by Congress or will they presume to be able to invent new rights according to their subjective view of the law? Will the nominee enforce a written constitution or will he or she see that it is their job to change the Constitution to match their policy preferences when they do not like the outcome?

To be confirmed, I believe a nominee must establish that he or she should embrace the role of a traditional vision of a judge. I believe that is absolutely critical because someone who presumes to say: After I get confirmed, I am going to call cases the way I see them; and if I don't like the way the Constitution calls for those cases to be decided, or the way Congress has written the law, I am going to substitute my opinion for that and I am going to twist the law to reach a particular result--in my view, a judge who presumes to be a lawmaker by twisting the law to accomplish a particular result, in effect, becomes a lawbreaker. A judge who presumes to be a lawmaker, I believe, is a lawbreaker.

Elena Kagan, our nominee, is obviously enormously bright. She has excellent academic credentials and has had an accomplished career. Her testimony before the committee, however, did not persuade me that she agrees with this traditional role for a judge. In fact, her testimony about judicial philosophy is open to multiple interpretations and was intentionally vague. In her own responses following the hearing, for example, Solicitor General Kagan indicated that she would decide cases based on not the written Constitution, not the laws passed by Congress, but based on her ``constitutional values.'' But she acknowledged that her constitutional values can point in different directions at different times and claimed that she would exercise prudence and judgment in resolving the tension between them.

Well, that all sounds pretty fine and well, but what that means is she would not agree that her decisions should be confined to the written Constitution that has been ratified by we the people and the laws passed by the elected representatives of the American people, for which we are electorally accountable every election. She presumes, it seems to me, by her vague and subjective language, to suggest that her constitutional values--which point in different directions depending on the case--and the fact that she says she would exercise prudence and judgment in resolving tensions is somehow a substitute for taking an oath to uphold the Constitution and laws of the United States. That is simply unacceptable.

In voting on a Supreme Court nominee, I think we need more certainty than the simple assurance that a nominee would exercise their judgment. Of course, we expect for the nominee to exercise judgment, but that is not sufficient. We need a Justice who will follow the law, someone who will follow and enforce the Constitution of the United States. You know what. If we don't like the Constitution as written, and we think it needs to be amended, well, under article V of the Constitution there is a process to do that. And you know what. If we don't like the law Congress makes, well, Congress, of course, is free to change it. But if we the people still don't like the way Congress writes the law, and they refuse to respond to the will of the people, we have a right to replace Members of Congress. That is the way a democracy is run, not by a judge dictating to us what he or she thinks is good for us.

In voting on a nominee, I think we need more assurance from the nominee than she will simply exercise her judgment and she will exercise prudence in resolving tensions in the constitutional values.

Solicitor General Kagan also testified the Constitution is written in general terms that enable the courts to change the law in response to ``new conditions and new circumstances''--changes that she testified occur ``all the time.''

She says that because the Constitution is written in general terms, the courts are empowered to change the law in response to new conditions and new circumstances--changes that she testified ``occur all the time.''

Well, I have an alternative suggestion. Rather than ceding to an unelected Supreme Court or a Federal judiciary, why isn't it that we the people have the right to petition Congress to change the law? That is the way democracies are supposed to work. It is the job of a judge to enforce that law, and if we don't like the way the Constitution is written, well, we have passed 27 amendments during the course of our history amending the Constitution. But that reserves the right to we the people and does not cede that authority to any unelected, lifetime-tenured judge.

I was also troubled by a couple of other specific areas and her interpretation of the law--one that has to do with the power of the Federal Government. I mentioned that a moment ago. Under the commerce clause of the Constitution, the Supreme Court has previously basically given the Federal Government almost limitless powers.

We have seen that at play in the debate over the individual mandate in the health insurance bill that was recently passed, with an unprecedented reach of Federal power into your living rooms, where we are sitting on our couches, and which says: You know what. The Federal Government demands that you purchase a government-approved health insurance policy. If you don't, we are going to penalize you.

That power is unprecedented. That is why it is being litigated now.

But Solicitor General Kagan did not seem to recognize that the Federal Government's powers are one of enumerated powers, delegated by the States and by the people, and all rights not delegated were reserved to the people and to the States.

I was also troubled by her testimony with regard to the second amendment--the right to keep and bear arms. She did say the recent decisions in Heller and McDonald are ``settled law,'' but I worry that her interpretation of settled law means until there are five new Justices who take a look at that settled law and just decide to change it.

Unfortunately, we saw the same sleight of hand with Justice Sotomayor's testimony regarding the second amendment. Last year, she testified that Heller was settled law. But last month, she joined in a dissenting opinion in McDonald urging it be overturned, saying she did not believe the second amendment conferred a fundamental individual right to keep and bear arms. I think the second amendment, and all of the amendments of the Constitution, in the entire Constitution, are too important to leave to such an empty promise.

Madam President, I see my friend and colleague from Utah here to speak. Let me just say that the last thing I wanted to address--and I will plan on coming back, assuming we have enough time to talk about it--is, frankly, the stigma that Ms. Kagan and the folks at Harvard imposed on our men and women of the military by banning them from the Career Services Office at Harvard Law School and, in effect, stigmatizing them and causing people to disrespect them, even though they were merely applying the law that Congress passed and over which they had no control.

I am very troubled by that, and I will come back to talk about that more as time permits. But for these reasons I have given, and others I will expand upon later, I oppose the nomination.

I yield the floor.

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