Ben Cardin - Senator for Maryland

CONFIRMATION HEARING FOR ELENA KAGAN TO BE ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNTIED STATES

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Thank you, Chairman Leahy.  Solicitor General Kagan, welcome back to the Judiciary Committee. Last year, I had the privilege of chairing your confirmation hearing for the position of Solicitor General. While we had a spirited debate at that time, I think we can agree that there was not quite as much media attention to that hearing as there is today.
 
Why is that? As I prepared for this week's hearings, I have been thinking about the role of the Supreme Court and the Constitution in our lives. Many people may say-to paraphrase our Vice President- "Why is this such a big deal? Why should I care? Does the Supreme Court really impact my life or my family?"
 
If you have children, if you work for a living, if you are a woman, if you vote, if you care about the air we breathe or the water we drink, you need to pay close attention to this confirmation hearing and the work of the Supreme Court.
 
The Constitution has a very tangible impact on all our lives. It is the foundation of our rule of law that is supposed to protect us from the abuses of power- ABUSES OF GOVERNMENT, ABUSES OF BIG BUSINESS.
 
The very words that open our Constitution tell us why we ALL should care so much about who is on the Supreme Court and who will be responsible for upholding our laws.
 
"We the people of the United States- WE THE PEOPLE- in order to form a more perfect union, ESTABLISH JUSTICE, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution of the United States of America."
 
The authors of the Constitution understood the timeless idea that Justice was paramount. As we gather this week to consider your nomination, Ms. Kagan, to be just the 112 th person-and only the fourth woman-to serve on our highest court, my goal is to ensure that you have a clear understanding of how profound an impact your future decisions may have on the lives of everyday Americans. Based on our conversations, I trust that you will put the interest of the American people and justice for the American people, first, above popular opinion or politics.
 
I also will do all I can to ensure that the American people, whether you are watching this hearing at home, at work, or at school, gain a better understanding of how the Supreme Court, which has a duty to uphold the Constitution, really does affect your lives. The principles outlined in the Constitution are not some abstract, historical theory. At its heart, our Constitution and the rule of law is about people - We the People.
 
Let's start with families and children. As a personal example, I -- along with millions of American school children -- was denied a full education opportunity in our schools because I was forced to attend segregated public schools. The Supreme Court, in Brown v. Board of Education, rejected the notion of separate but equal and helped move our nation forward toward a "more perfect union." It was a young attorney, from Baltimore, who argued that case before the Supreme Court. He later became the first African-American to serve on the Supreme Court. Justice Thurgood Marshall had one of the most distinguished records on the court, aided by energized law clerks including our nominee, Elena Kagan.
           
If you believe that you have a right to fall in love and get married to whomever you wish, you are mostly correct, but only because the Supreme Court intervened on the side of the American people when it ruled in Loving vs. Virginia that inter-racial couples could marry. Indeed prior to that decision, the parents of the current President of the United States and some members of this United States Senate could not have been married in some states of this Nation.
 
If you believe that what you do in your own home, in your own bedroom, is your business and no one else's - especially not the government's - you also are correct, but only because Supreme Court decisions like Griswold v. Connecticut and Lawrence v. Texas reinforced the individual's right to privacy, keeping government out of the private consensual activities of adults.
 
The Supreme Court was on the side of the American people when it ruled in Roe v. Wade that the constitutional right to privacy exists. The court ruling was not taking sides in a debate on abortion:  it was stating that there are certain matters in which government should not interfere in the privacy of families. Likewise, the court has ruled that every person is entitled to their religious beliefs - or lack thereof - but the Constitution makes it clear through the establishment clause that Congress cannot show preference to a religion.
 
So many of these cases are categorized as "landmarks" because they continued a forward progression of protections for the American people against abuses of power, particularly by an over-reaching government. Such was the case when the Supreme Court ruled in Gideon v. Wainwright that the constitutional right to counsel in criminal proceedings was guaranteed regardless of the wealth of the defendant. The Supreme Court gave the words "equal justice under the law" real meaning. Perhaps this decision was to be expected, since the oath of office declared by every federal judge makes it clear that he or she "will administer justice without respect to persons and do equal right to the poor and to the rich."      
 
I believe that our next Associate Justice and the whole Supreme Court should be guided by legal precedent and the best traditions of the Supreme Court in advancing constitutional rights for individuals against the abuses of power, whether by government or businesses, even as our world continues to change and evolve. Justice Thurgood Marshall said in a 1987 speech, "I do not believe that the meaning of the Constitution was forever 'fixed' at the Philadelphia Convention. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today."
           
Some change has not been for the better, I have been troubled by the increasing number of 5-4 decisions over the last five years in which a divided Supreme Court reversed decades of progress and precedent with rulings that side with powerful corporate interests rather than protecting individual rights. This trend was clearly shown in Citizens United where the Supreme Court reversed precedent and over-ruled Congressional intent giving corporate special interests even more power and influence in elections. In the Ledbetter case, the majority of the Supreme Court protected employers over workers in gender discrimination, again reversing the clear intent of Congress. In another 5-4 split court decision, Gross v. FBL Financial, the Court made it easier for corporate America to discriminate against aging Baby Boomer workers.
 
If you work for a living, if you are a woman, or if you are worried that corporations can buy a louder voice in an election than hardworking, everyday Americans, you need to keep an eye on the activism being practiced by this Supreme Court.
 
Are you a consumer? Do you buy products for you or your family? If so, the Supreme Court in Leegin - yet another 5-4 split - should be of concern to you too. Here, the court ignored long-standing precedent to protect big business to perpetuate price fixing. It was a ruling that put consumers at risk.
 
Rapanos also was a step backwards, this time for the environment by reducing protection for wetlands under the Clean Water Act. If you are like the rest of us and wonder if BP will be held fully accountable for the economic and environmental devastation brought on by the ongoing oil spill in the Gulf of Mexico, you will be equally alarmed by the Supreme Court's decision in Exxon v. Baker which imposed limits on damages that can be recovered in environmental disasters.
 
Time and time again, by the narrowest of margins, this activist court has sided with big businesses over Main Street America wiping away protections set in place by years of legal precedent and congressional action.
 
Just last month, the court - once again by a 5-4 decision - ruled against the individual protections enshrined in the Constitution and its Bill of Rights. In the Tompkins case, the court reversed prior decisions and weakened such cases as Miranda - a bedrock of our legal system - by offering a counterintuitive pronouncement that an accused has to speak up in order to remain silent. I believe that "innocent until proven guilty" and the "right against self-incrimination" are still part of our system of law.
 
Having just joined the Senate in 2007, I have had just one other opportunity to exercise my constitutional duty to provide "advise and consent" for a Supreme Court Justice. I was proud to see that Justice Sonia Sotomayor, who I voted to confirm last year, authored the dissent opinion in the Tompkins case. Unfortunately, it seems only a minority of the current court understands the concept that the rule of law should be defined by the law itself and not public opinion. 
 
As Justice Stevens stated in Citizens United, "Essentially, five Justices 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…there were principled, narrower paths that a Court that was serious about judicial restraint could have taken."
 
I join him in wondering just how or why those who profess to oppose judicial activism have voiced their support for these Supreme Court decisions in which justices have over-turned long-standing precedent and substituted their own legislative voices for Congress, blurring the line between the legislative and judicial branches of government.
 
Justice Stevens followed in the best traditions of the Supreme Court in advancing individual Constitutional rights. His name will stand beside John Marshall, Louis Brandeis, Thurgood Marshall, and Sandra Day O'Connor as giants in our nation's highest court. Elena Kagan comes to this confirmation hearing with very impressive credentials to help fill the shoes of Justice Stevens.
 
As I said earlier, I had the honor to chair her confirmation hearing for Solicitor General. Like Justice Stevens, she is a known consensus builder. She also is an unquestioned legal scholar, a proven leader, and a dedicated public servant. As someone who has worked my whole career to expand access to "justice for all," I have been particularly impressed by her record at Harvard of greatly expanding the number of law school clinics, which provide essential pro bono work for individuals who otherwise could not afford legal representation.
 
Ms. Kagan, I consider it a strength that you come from outside of the judiciary, yet I know that having served as Solicitor General - a position often referred to as the 10 th justice - you are well prepared for the day-to-day responsibilities of the Court.  You join a distinguished line of justices, including William Howard Taft, Stanley Forman Reed, Robert H. Jackson, and, of course, Thurgood Marshall, all of whom served as U.S. Solicitor General before serving on the high court. I expect that your broad experiences will serve you and the American public well.
 
I welcome the American public to these hearings as we open a window to the Supreme Court and shine a light on the critical role the Constitution and the rule of law plays in all our lives. I come to these hearings not solely as a U.S. Senator, a legislator, and a lawyer, but as a husband, father, and grandfather. Every ruling made by the Supreme Court that continues to uphold the constitutional protections that keep my granddaughters and their future safe and secure is a victory. Every Supreme Court ruling that opens the door to abuses of power, by the government or big corporations, by over-turning long-standing precedent or reversing Congressional intent, puts my granddaughters, and your granddaughters, and your children at greater risk.
 
I will do all I can within my power to protect my family and every American family from such risks.
 
Solicitor General Kagan, I welcome you to this confirmation hearing and look forward to your testimony and responses to our questions.

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