Executive Session

Floor Speech

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Mr. McCONNELL. Mr. President, let me begin by thanking the chairman and ranking member of the Judiciary Committee, Senator Leahy and Senator Sessions, on conducting a dignified and respectful hearing on the Kagan nomination.

Let me just add that, in my view, the way Republicans on the Judiciary Committee have conducted themselves in the minority over the past few years underscores that the kind of hyperbole and hysteria that has too often accompanied the Supreme Court nominations of Republican Presidents is hardly an essential part of the process. The committee hearings gave Senators and the American people a valuable opportunity to focus our attention on a woman whom President Obama would like to see deciding cases on some of the most important and consequential issues we face as a country. Ms. Kagan will be ruling on some of the most important legal questions that arise during President Obama's administration and long after he leaves office. It was vitally important that we have an opportunity to question her on her views about the law. What we learned from the hearing and what we were unable to learn from it form an important part of the record on her nomination.

But this, of course, is just a part of Ms. Kagan's record. Senators have spent weeks examining Ms. Kagan's experience and background in light of the awesome responsibility that comes with a lifetime appointment on our Nation's highest Court. As I have said previously, my own judgment is that Ms. Kagan is not suited to assume a lifetime position on our Nation's highest Court. Now I would like to explain why in more detail.

As we know, Ms. Kagan does not have the judicial or private practice experience most modern-day Supreme Court Justices have had--far from it. This is relevant not because one has to have prior judicial experience in order to be a good Supreme Court Justice--that is not my view now, and it never has been--but the absence of judicial experience makes it all the more important that we look more closely at the kind of experience Ms. Kagan has, in fact, had. A review of Ms. Kagan's experience reveals a woman who has spent much or her adult life not steeped in the practice of law but in the art of politics.

When we look at her resume, we find a woman who has worked fervently to advance the goals of the Democratic Party and liberal causes, usually at the expense of those with whom she disagrees politically or ideologically. In college, she spent one summer working 14 hours a day for a liberal Democratic candidate for the U.S. Senate from New York. When her candidate lost, Ms. Kagan wrote that it was her hope that one day a ``more leftist left will once again come to the fore.''

In fairness, few of us would want everything we said or wrote as college students put up on a billboard. But the trajectory of Ms. Kagan's career and the records from her time as a political advisor in the Clinton White House 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 flair for political tactics. .....''

What else do we find in Ms. Kagan's resume?

Well, 8 years after that first Senate race, 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. I note her job as an opposition researcher because it is part of a pattern of partisan political activity and because Democrats themselves have strongly questioned the impartiality of Republicans who have held this type of job.

As a Supreme Court law clerk, Ms. Kagan often inserted her own personal views into her legal advice. In one case, for example, she was dismissive of a man's second amendment claim because it was something that, in her words, she did not find to be ``sympathetic.''

Later, as an aide to President Clinton, she did not serve as an attorney but as a policy advocate, seeking legal advice rather than giving it. It was in this role that she helped lead a task force on changing the Nation's campaign finance laws and gleefully noted when one specific proposal would disadvantage Republicans. She also went out of her way to deter lawyers at the Justice Department from officially noting their serious constitutional concerns with a campaign finance proposal because it might complicate the pursuit of the Clinton administration's political goals.

It was also at the Clinton White House that she suggested turning a routine literacy event at a Maryland school into a chance to score political points against--you guessed it--Republicans. And it was there that she went to extraordinary lengths to prevent the enactment of a ban on partial-birth abortion, a procedure the vast majority of Americans strongly oppose.

From the Clinton administration, she went on to academia. She had strongly held views and acted upon them there as well. As dean of Harvard Law School, she refused to give our military, at all times, the full and good access to which they are entitled under Federal law. Indeed, she was so driven by her own personal views on this issue that she took a position in a case before the Supreme Court that was so legally dubious that not a single Justice agreed with it.

From Harvard, President Obama--her friend and former colleague at the University of Chicago Law School--selected her to be his Solicitor General. I, and the vast majority of my Republican colleagues, voted against her nomination to that position, given her lack of litigation experience. Indeed, Ms. Kagan made her first oral argument in any court, for any purpose, just last year in the Citizens United case. Having been in the courtroom myself that day, I heard her argue to an astonished Supreme Court that the power of the Federal Government is so vast it can ban political speech with which it disagrees, such as political pamphlets, despite the clear commands of the first amendment to the contrary.

So when we look at Elena Kagan's background, what we find again and again is someone who has worked tirelessly to advance a political agenda or ideology, often at the expense of the law.

Let's look for a moment at her relationship to the current administration.

We know the President and Ms. Kagan are former colleagues and friends. We know that the President views her as an important and loyal member of his team and that he was particularly pleased with her handling of the Citizens United case. And we know the President is confident that Ms. Kagan shares his view that judges should be judged especially on their ability to empathize with some over others--in other words, that she embraces the so-called empathy standard whereby judges act on, to quote the President, ``their broader vision of what America should be,'' which may or may not be what the law says is required. All of which brings us to the question of whether Ms. Kagan is suited to sit on the Supreme Court.

We do not have a judicial or private practice record to go to, but from the record we do have--that of a passionate policy advocate, a zealous political operative, and a loyal member of the Obama administration--the President picked precisely--precisely--the kind of judge he said he would. But is this the end of the inquiry? The President won the election. Ms. Kagan is bright. She has a good humor. Does the Constitution suggest that we therefore must assent to her nomination? Is that what the Founders envisioned?

Well, the Federalist Papers say two things that are particularly relevant here.

First, let's look at Federalist 76, which gives examples of specific disqualifiers for confirmation. The common theme for these disqualifiers is someone who is nominated not because of their objective qualifications but because of a personal connection to the Executive--be it friendship, family relationship, or a belief that they will exhibit a bias. It says the Senate's power to disapprove a nominee ``would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.'' That is Federalist 76.

Now let's look at Federalist 78, which talks about the role of the courts in our democracy and the proper philosophy for a judge. Here, Hamilton writes that courts may not ``substitute their own pleasure to the constitutional intentions of the legislature.'' He adds that their job must be to ``declare the sense of the law'' and that if, instead, they should exercise their ``WILL''--which he puts in all capital letters--``the consequence would be ..... the substitution of their pleasure to that of the legislative body.'' In other words, Hamilton was cautioning against judges so motivated by their own passions and sympathies that they would use their judicial power to implement, as President Obama puts it, ``their broader vision of'' what ought to be.

So while Hamilton, in Federalist 76, listed some of the reasons for disqualifying a nominee, this was clearly not an exhaustive list. Surely he did not lay out the critical qualification for a judge in Federalist 78 and then leave the Senate powerless to enforce it. Both papers must be read together, not in isolation, which brings us back to Ms. Kagan.

If you believe the role of a judge is to be an impartial arbiter, Ms. Kagan's background as a policy advocate and political lawyer--and oftentimes a very partisan one--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 side.

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 you believe the role of a judge is to be an impartial arbiter, Ms. Kagan's relationship to the President can't be ignored either. I think our friend, the senior Senator from Ohio, put his finger on what Federalist 76 was talking about in this regard. As he put it earlier this week:

I would argue that General Kagan has been nominated based on her friendships and her personal attachments with President Obama and others at the White House, not based on objective qualities that would indicate she is qualified to be a Supreme Court Justice.

As for the empathy standard, well, empathy may be a very good quality in general, but in a court of law it is only good if you are lucky enough to be the guy the judge empathizes with. It is only good enough if you happen to share the judge's ``broader vision of what America ought to be,'' which is the exact opposite of what the author of Federalist 78 had in mind.

Let's say you are a pro-life group challenging a restriction on late-term abortion and you are appearing before a Justice Kagan. In light of the lengths
she went to in order to arrive at her preferred result on the subject of partial-birth abortion, do you think you are going to get a fair shake?

Let's say you think the government is infringing upon your second amendment rights. Given that she dismissively said she is not sympathetic to this sort of challenge, do you think she is going to apply the law or her own broader vision of how America should be?

Let's say you are a conservative nonprofit group that wants to publish a pamphlet or show a movie before an election. In other words, let's say you are a group such as Citizens United. Given her record of partisan advocacy, how do you think you are going to fare before her in that case?

Ms. Kagan has never made a secret of her professional aspirations. She has cultivated all the right friendships along the way, including the President of the United States. This is all well and good but, in my view, it strains credulity to think that Ms. Kagan's strong political views will be more constrained by the Constitution once she reaches her goal than they have been up until now.

Some of Ms. Kagan's supporters would like us to focus on her personality. They say she has a knack for making friends and getting along well with different kinds of people. 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 social club. If getting along in polite society were enough reason to put someone on the Supreme Court, then we wouldn't need a confirmation process at all.

The goal was not to determine whether we think someone is smart and easy going; it is whether someone can be expected to be a neutral and independent arbiter of the law rather than a rubberstamp for this administration or for any other.

Whether it is small claims court or the Supreme Court, Americans expect politics to end at the courtroom door. Nothing in Elena Kagan's record suggests that her politics will stop there.

Ms. Kagan's background as a political operative, her lengthy resume of zealous advocacy for political and ideological causes, often at the expense of the law and those whose views differ from her own, her attachment to the President and his political and ideological goals, including his belief in the extraconstitutional notion that judges should favor some over others, make her precisely the kind of nominee, in my view, the Founders were concerned about and that Senators should have reason to oppose.

For these reasons, I will vote against the nominee, and I urge my colleagues to do the same.

I yield the floor.

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