July 14, 2010

THE NOMINATION OF ELENA KAGAN TO BE ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES OF AMERICA

"Next week the Senate Judiciary Committee will be voting on the nomination of Elena Kagan to be the next Associate Justice of the Supreme Court of the United States. This vote in the Judiciary Committee follows four days of hearings on her nomination. As you know, she currently is the Solicitor General of the United States.
 
"We had four days of hearings, during which every member of the Judiciary Committee had ample opportunity to ask questions and get responses from Solicitor General Kagan. We also heard from outside witnesses, some who were directly affected by the decisions of the Supreme Court of the United States. We reviewed tens of thousands of pages of documents.  
 
"I pointed out during these hearings why Americans should be so concerned about who will be the next Supreme Court Justice of the United States. The decisions of the Supreme Court affect your life.  If you work for a living, if you're a woman, if you vote, if you care about the air we breathe or the water you drink, if you're a consumer, you need to be concerned about the Supreme Court.
 
"The Constitution protects us from the abuses of power, whether those powers are generated by government or powerful special interests. The Supreme Court was designed to be the protector of our constitutional rights.  As the preamble to the Constitution states,
 
'We the people of the United States - We the People -- in order to form a more perfect Union, establish Justice, ensure 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 for the United States of America.'
 
"The authors of the Constitution understood the timeless idea that justice was paramount.
 
"After questioning Solicitor General Kagan, and listening to her testimony for a week, I am convinced that she has a clear understanding of how profound an impact her future decisions may have on the lives of everyday Americans.  Based on the hearing and the conversations I've had with her, I am confident that she will put the interests of the American people and justice for the American people first above popular opinion or politics.
 
"As Solicitor General Kagan said in her opening statement to the Committee, equal justice under law 'means that everyone who comes before the Court - regardless of wealth or power or station - receives the same process and protections … it promises is nothing less than a fair shake for every American.'
 
"During the confirmation hearings, I asked Solicitor General Kagan about civil rights, campaign financing and our environment. I used those three areas to demonstrate how important the decisions of the Supreme Court can be to the lives of everyday Americans. I expressed my concerns about recent Supreme Court decisions where an activist court, by the narrowest of margins -- usually 5-4 -- reversed precedent, legislated from the bench and ruled on the side of big businesses over civil rights.
 
"The importance of the Supreme Court to our civil rights was underscored by the decision of Brown v. Board of Education, which opened up educational opportunity for the people of this nation.  I pointed out during the hearings that it was Thurgood Marshall, the young attorney from Baltimore, who argued that case before the Supreme Court. He became the first African-American Justice on the Supreme Court of the United States, and one of his law clerks was Elena Kagan.
 
"Recent decisions underscore my concern as to whether the Supreme Court is following legal precedent to protect the civil rights of the people of our nation. The Ledbetter decision, which dealt with gender equity, is one example. Here the Supreme Court, with a 5-4 decision, reversed precedent and the clear intent of Congress to deny women the opportunity to effectively enforce their rights for equal pay. The court said to Ms. Ledbetter that she had to bring her case on pay discrimination within 180 days of the discrimination, although it was impossible for her to know that she was being discriminated against during that period of time.  We have taken action in the Senate to reverse that.  President Obama signed legislation to reverse it. But the Supreme Court never should have ruled against American workers and American women in the Ledbetter decision.
 
"During Solicitor General Kagan's confirmation hearing, I also mentioned the Gross decision, which deals with age discrimination. Here, the Supreme Court reversed its own precedent and clear Congressional intent to deny an effective remedy on age discrimination, changing the standards in order for a person to be able to bring a case.
 
"During the hearings, I also talked about campaign finance and the Citizen United case where the Supreme Court -- again by a 5-4 decision -- reversed precedent, reversed Congressional action and allowed more corporate money into our election system. Because corporations don't have enough power already, the Supreme Court gave corporations even more influence in our federal election process.  
 
"I was impressed, and I think the members of the Judiciary Committee were impressed, that the first case that Solicitor General Kagan decided to argue before the Supreme Court was to try to uphold our action in Congress in regards to campaign finance reform.
 
"In his dissent to the Citizens United decision, Justice Stevens got it right when he said '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, narrow paths that a court that was serious about judicial restraint could have taken.'
 
And in the environmental areas, I mentioned during the hearing the Rapanos case, in which the Supreme Court - once again by a 5-4 decision -- reversed the clear intent of Congress and legal precedent to restrict the Environmental Protection Agency's ability to protect the wetlands of our nation under the Clean Water Act.
 
Once again in Exxon v. Baker, the Supreme Court recently restricted the amount of claims that can be brought in regards to polluters in the Exxon Valdez case. That's of particular concern to all of us who are trying to make sure that those who have been victimized by the BP oil spill have an effective remedy and that taxpayers don't have to bail out for the damages caused by BP Oil.
 
"When I questioned Solicitor General Kagan she stated that 'Congress certainly has broad authority under the Constitution to enact legislation involving the protection of our environment. When Congress enacts such legislation, the job of the court is to construe it consistent with Congressional intent.' Well, that's the type of person I would like to see, and I hope all of us would like to see, on the Supreme Court of the United States. She will give due deference to Congress as the legislative body under the Constitution.
 
"I am puzzled by those who have defended these Supreme Court decisions that have taken away our citizens' civil liberties and civil rights. I'm puzzled by those who say that corporations don't have enough power in this country so they need more power. I'm puzzled by those who have jeopardized our environment by supporting such decisions even though each one reverses previous precedent, even though it's legislating from the courts and reversing Congressional action. I'm puzzled by those who profess to be against judicial activism but have supported these decisions by the Supreme Court of the United States.
 
"I am confident that Elena Kagan will follow legal precedent. She will respect the rights of the Congress of the United States to legislate. She will protect your rights against the abuses of power, whether it's from the government or from powerful corporate special interests. She will respect the rights of the people of this nation that the Constitution so well was designed to deal with.
 
"Lastly, let me say that she is well qualified to serve on the Supreme Court of the United States. Elena Kagan was the Dean of Harvard Law School. She currently is the Solicitor General of the United States, which is commonly referred to as the tenth justice because of how closely she has worked with the Supreme Court.
 
"I also am impressed by the bipartisan support that she has received from those who know her best. Former Solicitors General of the United States, appointed by both Democrats and Republicans, support her nomination to be the next Associate Justice of the Supreme Court of the United States. And when we confirm her appointment, three women will serve on the Supreme Court of the United States for the first time in the history of America. It will be a proud moment for this body to confirm her nomination.
 
"Next Tuesday, I will vote in the Judiciary Committee to confirm Elena Kagan to be the next Associate Justice of the Supreme Court of the United States. I look forward to when each member of the United States Senate will have an opportunity to vote on her nomination. I hope it will be an overwhelming confirmation for her to serve the American people on the Supreme Court of the United States."