[Congressional Record (Bound Edition), Volume 156 (2010), Part 9] [Senate] [Pages 12770-12773] [From the U.S. Government Publishing Office, www.gpo.gov]KAGAN NOMINATION Mr. DURBIN. Mr. President, the Senate is returning to Washington after the Fourth of July holiday recess. The week before we left town, in the Senate Judiciary Committee, we held a hearing for President Obama's Supreme Court nominee, Elena Kagan. The hearing lasted 4 days. The nominee responded to 695 questions. I wish to commend, in particular, the chairman of that committee, Senator Patrick Leahy, and the ranking member, Senator Jeff Sessions of Alabama. It was a fair and respectful hearing. [[Page 12771]] Last year President Obama made history with his nomination of Sonia Sotomayor as the first Hispanic to serve on the Supreme Court. Elena Kagan is also an historic nominee. Last year she became our Nation's first female Solicitor General. That, of course, is the attorney representing the United States of America before the highest Court in our land, the Supreme Court. If she is confirmed to serve on the Supreme Court, it would make the first time in our Nation's history that three women have served together on the highest court in the land. That is clearly a mark of social progress in this great Nation. Elena Kagan, of course, will be replacing a legal legend, Justice John Paul Stevens. A lifetime in the law and the courage to speak his mind made Justice Stevens a national treasure. So what did we learn from this hearing on Elena Kagan? First, we learned she is a highly intelligent, very charming and very funny, at times, individual. She demonstrated a thorough knowledge of the law, an ability to try and find common ground on difficult issues, and, as I mentioned, a very healthy sense of humor. These are qualities that served her well as Solicitor General of the United States, as the first woman to serve as Dean of the Harvard Law School, as a law school professor, and as a policy aide to former President William Clinton. They are valuable qualities that will serve her well on the Supreme Court. Secondly, we learned that Elena Kagan has great respect for Congressional action and judicial precedent. In her opening statement she said: The Supreme Court is a wondrous institution. But the time I spent in the other branches of government remind me that it must also be a modest one, properly deferential to the decisions of the American people and their elected representatives. In response to a question from Senator Dianne Feinstein of California, General Kagan said: The operating presumption of our legal system is that a judge respects precedent, and I think that that's an enormously important principle of the legal system. These qualities, a respect for precedent and deference to Congress, are essential for a Supreme Court Justice to have but, unfortunately, they have been in short supply with our current Court. In case after case in recent years, the Supreme Court has overturned longstanding precedents and thumbed its nose at congressional decisions. In many of these cases, the five conservative Justices on the Court have acted not as neutral umpires, as one described himself, but as designated hitters going to bat, unfortunately, for some of the special interests in America. Let's take a couple of examples: The case of Citizens United versus the Federal Elections Commission, which was handed down by the Supreme Court earlier this year. In that case, a conservative 5-4 majority of the Court demanded to hear arguments on an issue that was not even raised by the parties in the case. They reversed decades of Supreme Court decisions that preceded them. They ignored the will of Congress in passing the historic bipartisan McCain-Feingold campaign finance law, and they ruled that corporations and special interest groups could spend unlimited amounts of money to affect elections. This decision by the Supreme Court, unfortunately, has the power to drown out the voices of average Americans in our elections. Justice Stevens, now retiring, whose vacancy we are seeking to fill, wrote these powerful words in the dissent: Essentially, five judges were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law. Then there was the case of Lilly Ledbetter, who testified at the Kagan hearing about her experience working as a manager at the Goodyear tire plant in Gadsden, AL. Lilly Ledbetter worked there for 19 years but she did not know during that entire period of time she was being paid less than her male colleagues who did exactly the same job. It was not until she was close to retirement that somebody finally told her how much the men working alongside of her, doing exactly the same work, were being paid. So as a result of that knowledge, she decided to bring a case to ask for compensation, for this clear case of gender discrimination, where a woman was being paid less just because she was a woman. The Supreme Court came down with an amazing decision in the Lilly Ledbetter case. Even though she had won her case before a jury, she went before the Supreme Court and this familiar five-Justice group of conservative Justices said she should have filed the case alleging discrimination in pay within 180 days after the initial act of discrimination; in other words, within 6 months after the first male colleague was paid more than she was paid, she should have filed a case for discrimination. You would think the Supreme Court Justices would at least understand that in most American workplaces, a worker does not know what his coworkers are being paid. It is not published, certainly is not published when it comes to managers' salaries. It is rare that anybody comes to know that. So Lilly Ledbetter, a victim of discrimination for years, did not know the man working right next to her, doing the same job, is being paid more. The Supreme Court said: Oh, that was a fatal flaw. The technical fact that she waited more than 6 months to file her discrimination case meant she was not entitled to recover. By making that decision, the Supreme Court, which was guided by the principle of avoiding judicial activism and avoiding doing things on their own that violated precedent and congressional acts, decided to overturn judicial precedents and the express intent of Congress when it passed the Civil Rights Act of 1991. We also heard at the Kagan hearing from Jack Gross. He was another victim of discrimination who helped put a human face on the conservative judicial activism on the current Supreme Court. Mr. Gross is not one of these wild-eyed liberals. He was a claims adjuster for an insurance company in southern Iowa for over 23 years. I know the company well. A pretty conservative lot runs that company. When he and all of the other supervisors at his company over the age of 50 were demoted and replaced with younger workers, would that raise a question in your mind if you had been Mr. Gross, that perhaps your age had something to do with it? Like Ms. Ledbetter, Mr. Gross, who had been a loyal employee of this company for over 20 years, won a jury verdict, a jury verdict which said, yes, that company made a decision to discriminate against Jack Gross because of his age. He ended up having that jury decision tossed out of Court at the Supreme Court right across the street. It is worth noting that very few discrimination victims win a jury verdict. Jack Gross did. Most victims have their cases dismissed or settled long before it reaches that point. But in the case of Jack Gross, the Supreme Court decided to invent a new legal standard that stacks the deck against victims of discrimination even more. Here is what Justice Stevens wrote in the dissent to that case: The majority's inattention to prudential Court practices is matched by its utter disregard of our precedent and Congress' intent. I think Elena Kagan's hearing demonstrates she will be a Justice who, like the Justice she will replace, John Paul Stevens, will give proper deference to Congress and respect to decisions of the Court. There was a third lesson from the Kagan hearing. I found this surprising. It was opening day. Here were Members of the Senate serving on the Judiciary Committee who were stating what they hoped to see in a Supreme Court Justice. Many of them singled out a man whom I consider to be one of the real champions of justice and liberty who served on the Court. Some of my colleagues across the aisle seemed to have forgotten in their opening statements the amazing legacy of Supreme Court Justice Thurgood Marshall, a Justice for whom Elena Kagan had clerked. They truly went to a level that was [[Page 12772]] close to guilt by association in attacking Elena Kagan because she had worked for Justice Marshall. One of my Republican colleagues called Justice Marshall ``the epitome of a results-oriented judge'' and ``not what I would consider to be mainstream'' and someone who believed that ``the Supreme Court exists to advance the agenda of certain classes of litigants.'' Another Republican Senator called Thurgood Marshall a ``judicial activist.'' I thought those characterizations were beyond the pale and said so in my opening statement. Thurgood Marshall is an American hero. The airport in Baltimore is named after him and many schools. He dedicated his life to breaking down barriers of racial discrimination that had haunted our country for centuries. Thurgood Marshall was the attorney who stood right across the street before the Supreme Court and argued the case of Brown v. Board of Education. That case, 56 years ago, did more to change America and move us toward equality than any modern decision by the Court. Thurgood Marshall won more victories in the Supreme Court than nearly anyone else in the history of the United States. As an appeals court judge, Thurgood Marshall wrote 112 opinions, none of which were overturned by a higher court. Some may dismiss Justice Marshall's pioneering work on civil rights as an example of empathy, a word which, unfortunately, has been given a negative connotation by some in this Chamber. They may suggest that somehow, as a Black man who had been a victim of discrimination himself, he had more passion when it came to certain issues. I say to that, thank goodness. I don't consider Brown v. Board of Education to be results-oriented judging. I consider it a courageous judgment that embraced our common humanity and moved America dramatically forward. We should be grateful as a nation for the tenacity, integrity, and values of Thurgood Marshall. In the words of John Payne, director-general of the NAACP Legal Defense and Educational Fund: Thurgood Marshall helped America understand what democracy really means. Some of Elena Kagan's critics suggest she will have the same views and philosophy as Justice Marshall because she served as his law clerk. In my personal opinion, we should be so fortunate. General Kagan made it clear at her hearing that she was determined to be her own person, not to assume the persona of someone for whom she has worked in the past. Moreover, it is wrong to suggest that a Supreme Court law clerk is going to have the same views as the Justice for whom he or she clerked. Exhibit A is Douglas Ginsburg. He sits on the D.C. Circuit and is one of the most conservative judges in America. Judge Ginsburg was nominated to the Supreme Court by President Reagan in 1987, after Robert Bork's nomination was defeated. Judge Ginsburg later withdrew his nomination, but I think it is safe to say he does not share the judicial philosophy of Justice Thurgood Marshall whom he also served as a law clerk. A fourth lesson from the Kagan hearing is, if you don't have a good case against the nominee on the merits, then pick an emotional issue and appeal on that ground. That is how some of my colleagues on the other side of the aisle handled the issue of military recruitment at the Harvard Law School when General Kagan was the law school dean. One of my Republican colleagues accused General Kagan of having ``a hostility to the military'' and alleged she broke the law in briefly denying military access to the career services office. These accusations are not correct. Dean Kagan bent over backwards to show respect and appreciation for the U.S. military and to comply with the 1996 Solomon amendment that required the Defense Department to deny Federal funding to universities that prohibited military recruitment on campus. Yes, Dean Kagan was a vocal opponent of the don't ask-don't tell policy. Most Members of Congress and a sizable majority of Americans no longer support that discriminatory policy. But that does not make Elena Kagan antimilitary. Don't take my word for it. Listen to the words of Robert Merrill, the only Active-Duty servicemember to receive a law degree from Harvard while Elena Kagan was dean. Here is what he wrote in the Washington Post: If Elena Kagan is ``anti-military,'' she certainly didn't show it. She treated the veterans at Harvard like VIPs, and she was a fervent advocate of our veterans association. She was decidedly against ``don't ask, don't tell,'' but that never affected her treatment of those who had served. . . . If anything, Kagan was an activist in ensuring that military recruiters had viable access to students and facilities despite the official ban. A Boston-area recruiter later told me that the biggest hurdle he faced recruiting at Harvard Law was trying to answer the students' strangely intellectual questions. During her 6 years as dean at Harvard, the military had full access to career services offices except for one semester after an appellate court struck down the Solomon amendment as unconstitutional. After that court decision, Dean Kagan decided to reinstate a system that had been in place nearly a quarter of a century prior to her becoming dean and that had been deemed to be in compliance with the law. Under that system, military recruiters were given access to students and the campus through the Harvard student veterans association. During the year of Dean Kagan's deanship, when access to the Office of Career Services was briefly denied, more graduating students at Harvard joined the military than any year of the past decade. When my Republican colleagues on the Judiciary Committee realized they weren't getting much traction at the Kagan hearing with their arguments about Harvard military recruiting, they brought out another theme. They said General Kagan is just too political to be a Supreme Court Justice because she spent 4 years working in the Clinton White House. Considering that Elena Kagan's legal career spans nearly 25 years, this 4-year argument seems a little bit hollow and stretched. In any event, all three of President Bush's Supreme Court nominees--John Roberts, Samuel Alito, and Harriet Miers--had worked in political positions in the White House and Justice Department under Republican Presidents. I can't recall a single time a Republican Senator said that President Bush's nominees were too political. Chief Justice Roberts worked in the Reagan White House for 4 years and as a political appointee in the Justice Department for 5 years. Justice Alito spent 9 years working in the Reagan and George H.W. Bush Justice Departments. Harriet Miers held a series of positions under President George W. Bush--for 5 years in the Bush White House and 6 years when the President had been Governor of Texas. There was not a single word raised on the Republican side of the aisle about how political those Republican nominees were. Now they are trying to raise an argument against Elena Kagan that they didn't see in previous nominees. I hope my colleagues will heed the advice of a man they extol when we discuss judicial nominations: President Bush's former judicial nominee, Miguel Estrada. Mr. Estrada wrote a letter on behalf of Elena Kagan, one of his fellow classmates at Harvard Law School. This is what he said: I write in support of Elena Kagan's confirmation as an Associate Justice of the Supreme Court of the United States. . . . Elena possesses a formidable intellect, an exemplary temperament and a rare ability to disagree without being disagreeable. She is calm under fire and mature and deliberate in her judgments. . . . Elena Kagan is an impeccably qualified nominee. Like Louis Brandeis, Felix Frankfurter, Robert Jackson, Byron White, Lewis Powell and William Rehnquist--none of whom arrived at the Court with prior judicial service--she could become one of our great Justices. That was Miguel Estrada, a person whose virtues have been praised at great length by Republicans in the Senate. We also received a joint letter of support for Elena Kagan from the last eight Solicitor Generals of the United States, including such conservative icons as Kenneth Starr, Ted Olson, and Charles Fried. [[Page 12773]] In our service to the Senate, we are called on to cast hundreds if not thousands of votes. Our late departed colleague, Robert C. Byrd, cast 18,000 votes. As I look back on my career of service in the House and the Senate, I can remember a few votes. I certainly remember every single vote I cast when I was asked to decide whether America should go to war. Those are the votes that keep one up at night wondering what is the right thing to do for the Nation; what is the right thing to do for one's own conscience. We know at the end of the day when we cast that vote, if we go forward people will die. We hope the enemy will be the victims, but we know even under the best of circumstances, innocent Americans will also die. Those votes we think over for a long time. In the Senate, next to votes on war, votes on Supreme Court Justices reach that same level of gravity and importance. We realize that man or woman we choose to be on the Court is likely to be there after our Senate careers and after we are long forgotten; that those nine people sitting across the street, when five come together, can make decisions that can impact America for generations to come. That is why it is so critically important for us to take a careful review and to take a deliberate approach when it comes to the selection of a Supreme Court Justice. When the time comes--and I hope it comes soon, maybe within the next week or two--I will be proud to cast a vote in favor of the nomination of Elena Kagan to the Supreme Court. I sincerely hope she receives the bipartisan support she richly deserves. I suggest the absence of a quorum. The PRESIDING OFFICER (Mr. Kaufman). The clerk will call the roll. The assistant legislative clerk proceeded to call the roll. Mr. DURBIN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. ____________________