Editor’s note: Last September, I, DJW, an Ohio native and Ohio political blogger who has, in times past, supported Voinovich candidacies in many ways, visited the Washington DC office of U.S. Sen. George Voinovich (R-Ohio), and came away from the experience very dismayed (putting it mildly) by the stonewall treatment I received. The Voinovich staff likes access to some of us bloggers by distributing press releases to us, but it doesn’t seem to be a two-way street, as I was afforded no access to the Voinovich staff except for the staffer who turned me away empty-handed. It made me regret helping Voinovich as much as I did. Nevertheless, today I relent (temporarily) to reprint a speech delivered 8/3/2010 on the Senate floor. I do so because I disagree with Elena Kagan’s nomination to become a justice on the U.S. Supreme Court, and Voinovich’s speech in opposition is very well expressed.
SPEECH ON THE NOMINATION OF SOLICITOR GENERAL ELENA KAGAN TO BE AN ASSOCIATE JUSTICE OF THE U.S. SUPREME COURT
August 3, 2010
Mr. President, I rise today to speak on the nomination of Solicitor General Elena Kagan to be an associate justice of the United States Supreme Court. I will not support Gen. Kagan’s nomination. I did not come to this decision lightly.
As I said last August during the debate on Justice Sotomayor, the role of the Senate in the nomination of a Supreme Court justice is to give its advice and consent on the president’s nomination with the Senate to judge whether an individual is qualified based on a number of factors. Among these factors are the nominee’s education, legal experience, prior judicial experience, written record, judicial temperament, commitment to the rule of law, and overall contributions to the law. Based on my review of Elena Kagan’s record, and using these factors, I have determined that General Kagan, at this time, does not meet the criteria for membership on our nation’s highest court.
The president deserves deference in his nominations, and of course presidential elections have a direct impact on the makeup of our judiciary; that is to say, elections have consequences. But, Senate confirmations should not be a simple mechanical affirmation of the president’s selection, especially when the nominee will enjoy a lifetime appointment. A senator is duty bound to conscientiously review the qualifications of the President’s nominee and make an independent assessment of the nominee’s qualifications.
Gen. Kagan is well educated, intelligent, bright and engaging and advanced quite rapidly in her career of teaching and law school administration, but one must ask, is that enough? I believe it is not. I believe a judicial nominee must have substantial experience in the law especially when that nominee is seeking a lifetime appointment to the highest court in our land. After reviewing her background, I believe Gen. Kagan does not have that relevant experience.
Gen. Kagan is the first nominee to the Supreme Court with no prior judicial experience since 1971, almost 40 years ago. While I do not believe that a lack of judicial experience should bar one from serving on the Supreme Court, I note that reviewing prior judicial service is obviously the easiest way to assess a nominee’s fitness for the court. This lack of judicial experience does not prevent her nomination, but, in my opinion, it does shift the burden to the nominee to demonstrate her other relevant experience.
For example, when the Senate considered Justice Sotomayor’s nomination there were over a thousand prior opinions one could review to decide if she was ready for the job; with Gen. Kagan, there are none. When I asked her to name opinions that she worked on with Justice Marshall with which she disagreed, she stated that she could not remember any individual opinion she worked on, much less whether she disagreed with Justice Marshall on any of them.
During our meeting, Gen. Kagan noted her service as solicitor general, another job I did not think she was qualified to hold, was the other relevant experience she possessed and I agree that it is relevant. Her time as Solicitor General, however, has been too short. Since President Kennedy’s solicitor general, Archibald Cox, only one confirmed solicitor general has served for a shorter time than Gen. Kagan. Gen. Kagan argued her first case before the Supreme Court less than a year ago and now we are going to confirm her as a member of that Court?
If you base her qualifications on her earlier legal practice, her experience is particularly limited. Gen. Kagan worked for two years as a practicing attorney. Justices Rehnquist and Powell, the last two Supreme Court nominees without prior judicial experience, each spent many years in the active practice of the law. Justice Rehnquist practiced in Arizona for over 16 years. Justice Powell was a partner in a major Virginia law firm for over 25 years and in practice for 38 years. Gen. Kagan has two years of experience in private practice and one as solicitor general. I also think it is worth noting that the independent Congressional Research Service has found that on average, the 39 justices who lacked prior judicial experience had more than 20 years of experience in private practice. Gen. Kagan’s experience pales in comparison.
During Justice Sotomayor’s confirmation, I spoke about how President Obama’s standard for selecting judicial nominees based on what was in their heart flew in the face of our meritocracy. We, as a nation, aspire to hire people for jobs based on their skill, not on where they are from or who they know. Justice Sotomayor, in addition to her 17 years of total service on the trial and appellate benches, was in private practice for 8 years and was a district attorney for 4 years. Justice Sotomayor’s experience as a lawyer and a judge, her judicial temperament, and the fact that her opinions were within the judicial mainstream gave me confidence that she had the relevant experience to sit on the Supreme Court. Because there is such a limited written record with Gen. Kagan and because she has gone out of her way to not answer questions, I have no idea what she will do on the bench and whether she will be able to suppress her own values to apply the law. The fact is we really do not know that much about her views.
Frankly, I have been surprised by some of my colleagues who attempt to compare her to the famous Justice Brandeis, another justice with no prior judicial experience. Justice Brandeis practiced the law for almost 30 years prior to his nomination, much of his practice being pro bono in his later years. Furthermore, Justice Brandeis is widely regarded as one of the great legal minds of not just his time, but of American history, having developed numerous areas of the modern law from scratch. Yet again, Gen. Kagan pales in comparison.
In my meeting with Gen. Kagan, I asked her about how little writing she had published and she responded that she had more academic writing than other members of the Supreme Court. This is factually incorrect and misleading. First, this is incorrect; Justice Scalia is widely published with numerous articles and books, Justice Ginsburg went so far as to learn Swedish to co-author a book on Swedish judicial procedure, and Justice Breyer was one of the foremost authorities on administrative law with many books and articles to his name before joining the Court. Second, it is misleading because each justice publishes hundreds of pages a year in the form of opinions, greatly eclipsing Gen. Kagan’s academic production.
There are over 800 federal judges, many of whom clearly have the experience, intelligence and legal skill to serve on our Supreme Court. Additionally, if one believes, which I do not, that the federal judiciary is somehow out of touch with our society, thousands, if not tens of thousands of state court judges are out there with lengthy judicial records, many ready to serve on the Supreme Court.
As an aside, only a former law professor would think that the dean of a law school is somehow more in touch with everyday people than a judge. Everyday a judge is presented with the facts of everyday life and must apply the law to them. A dean in a law school surrounded by professors earning hundreds of thousands of dollars a year and donors worth millions and students soon to enter into a professional career never gets to see everyday life and is never faced with the factory worker, the farmer, or any of the hardworking blue collar Americans. How is a law school dean more in touch with everyday people?
Some of my colleagues would like to have had a less liberal person nominated by the president. My position is that this president will surely nominate a liberal. The most important question is “is that liberal nominee qualified to be a member of the Supreme Court?” I would argue that Gen. Kagan has been nominated based on her friendships and 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.
In closing, lack of judicial experience should not be an absolute bar on serving as a Supreme Court justice. However, Solicitor General Kagan not only lacks judicial experience, but has limited experience as a practicing attorney with really only the last year as solicitor general and two years as a junior associate making up her entire practice. Additionally, Gen. Kagan has an extremely limited written record, which should make all of us unsure as to what sort of Justice Gen. Kagan might be.
Mr. President, for the reasons I have just listed, I cannot in good conscience support the nomination of Gen. Kagan to be a member of the United States Supreme Court.
Mr. President, I yield the floor.
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