Jeff Sessions

Mr. SESSIONS

Mr. SESSIONS. Mr. President, in the midst of President Johnson's ``Great Society,'' Ronald Reagan explained that our Nation had arrived at a crossroads, at a time for choosing. The choice, Reagan explained, was ``whether we believe in our capacity for self-government or whether we abandon the American Revolution and confess that a little intellectual elite in a far- distant capital can plan our lives for us better than we can plan it for ourselves.'' Forty years later, our Nation once again finds itself at a crossroads. Government is getting larger and larger. Spending is out of control, and a little intellectual elite, in a far distant capital, is trying harder than ever to plan the lives of the American people. Even basic choices about how we care for our own health are now made by career bureaucrats whose names Americans will never hear and whose faces they will never see. Our Nation has a choice to make. We either restore or relinquish our great heritage of limited constitutional government. Part of that choice will be made here today. Part of that choice will be made as we consider the nomination of Elena Kagan to the Supreme Court. In recent years, the progressive wing of the Supreme Court has offered opinions that would have denied Americans their right to keep and bear arms, and severely diminish the right to free speech during election time. These same progressive Justices succeeded only a short time ago in ruling that a citizen's property could be seized by the State for private commercial development. These Justices are ignoring the text of our Constitution, the plain rights guaranteed by our Constitution, in order to advance what they think are better ideas, their vision, their political agendas, frankly. This progressive, activist judicial philosophy strikes at the heart of our democracy and is a direct threat to our liberty. Judges are lifetime appointed. They are not accountable to the people. President Obama himself has said that judges must shed their neutral constitutional role and impose upon the nation ``their broader vision of what America should be.'' That is how he said he would pick judges, and this is certainly the kind of judge President Obama believes he has found in Ms. Kagan, someone who shares his progressive, elitist vision and is willing to advance it from the bench. Indeed, throughout Ms. Kagan's career, she has been more deeply involved in politics than law, and has frequently put her politics above law. She has never been a judge, never argued even a case before a jury. She has practiced law for 3 years. She has less real legal experience than any nominee in the last half century. The experience Ms. Kagan does have, however, is mostly that of a political lawyer and a policy advocate, and whenever her political views have clashed with her legal obligations, her vision of what America should be and not her duty have too often won the day. As a Supreme Court clerk she pursued a progressive agenda without regard to the Constitution's text or history. She even wrote she was not sympathetic to an American's constitutional right to keep and bear arms. As a top aide to President Clinton she was closely involved in efforts to restrict private gun ownership, including a plan to block firearm importation into our country that one Clinton official admitted was ``taking the law and bending it as far as we can.'' She also worked aggressively to ensure the wide availability of partial-birth abortion. Instead of providing President Clinton with sound legal advice based on the best medical evidence, she pushed the President away from his moderate position, and away from his willingness to reach a compromise on this issue. She even helped revise a medical statement to imply a medical need for the gruesome partial- birth abortion procedure that did not exist, when the expert panel had indeed said it was never an appropriate procedure. Next, as dean of Harvard Law, Ms. Kagan would once again sacrifice legal principle for political gain for advancement of an agenda she believed in. Ms. Kagan inherited a policy of equal and unfettered access for military recruiters on campus. That was the policy. But she reversed this policy, kicking the military out of the campus recruitment office as our troops at that very time were risking their lives overseas. She did this in clear, knowing violation of Federal law, the Solomon amendment. The Solomon amendment, passed by this Congress four times, requires unrestricted, equal access on campuses for military recruiters. Ms. Kagan knew what the law said, and as she herself admitted, knew that it was in force every single day she was dean. But she put her own views, her political ideas, her ideologies above the law and above the best interests of our soldiers, stripping the military of their official access availability on campus. Ms. Kagan justified this conduct by saying she was objecting to don't ask, don't tell. That statute, however, was passed by Congress and implemented by President Clinton, her former boss. But instead of complaining to the politicians who made the rule, to those of us in Congress who were involved in passing it and maintaining it, working within the democratic system, Ms. Kagan took it upon herself to defy the law and to demean the people who were merely following the law, our noble men and women who serve our country. Perhaps some of those on that campus recruiting had just come off the battlefield, having served their country, placing their lives at risk. For that there can be no justification. After Harvard, Ms. Kagan assumed the post of Solicitor General of the United States. In that job it is her sworn duty to defend all Federal laws, including those she may personally oppose. These are the laws of Congress which the Solicitor General must defend. As every good lawyer knows, her job is to represent her clients, and the client of the Solicitor General is the United States of America. Did she fulfill that duty? Did she faithfully represent her client? No, she did not. When the liberal Ninth Circuit issued a deeply flawed ruling against don't ask, don't tell, the law Ms. Kagan had so strongly opposed at Harvard, she did not appeal the ruling, despite great chances of success on appeal to the Supreme Court. Instead, she did exactly what the ACLU, the group who was leading the fight in representing the individual in that lawsuit, who opposed the statute and wanted it stricken, she did what they desired and let the ruling stand, and missed the opportunity to get a clear appeal. This was a test of Ms. Kagan's legal character, and she failed that test. I studied the case closely. I want to be fair to her about that. The only explanation for her not appealing to the Supreme Court was that she did not want them to uphold the statute to win a victory for the United States. In short, she did not fulfill her duty. Her duty. Is that a word that is out of fashion today? And she did not live up to her explicit, sworn promise made to this Senate, to vigorously defend that very statute, when she was confirmed to be Solicitor General. Given this record, it is not surprising that Ms. Kagan's judicial heroes are activists who reject and repudiate sometimes even the very idea of objectivity. But it is objectivity, the search for what is right and true, that makes our system of justice so extraordinary and so unique. The whole goal of our trials is to find the truth. These concerns were addressed during the hearing. Ms. Kagan was given every opportunity to respond. But she opted, I thought, for political spin at the expense of rigorous honesty and accuracy. In so doing, she only further demonstrated she lacked the qualities necessary to sit on the Court. Other Senators have the same impression of that testimony. Some have said that Senators are opposing this nomination for partisan reasons, that her qualifications are not in question. But what qualification is more essential for the Supreme Court than impartial fidelity to the law? This is not an ideological litmus test but a core bipartisan standard to which any nominee of any party ought to be held. Senators can and will disagree on the question of how much deference a President is due in his nomination. But surely that deference cannot extend so far as to include a nominee who is unable to serve under the Constitution as they take an oath to do. The American people will not easily forgive the Senate if we confirm Ms. Kagan to the Supreme Court. They will not forgive the Senate if we further expose our Constitution to revision and rewrite by judicial fiat, to advance what President Obama says is a broader vision of what America should be. That is the Congressional role, not the judicial role, to figure out what the vision and the policy of this country should be. Now more than ever we need this Court to be an impartial defender of our constitutional liberty. As Vice President Biden's own chief of staff and close friend of Ms. Kagan emphatically said, ``Ms. Kagan is clearly a legal progressive.'' If confirmed, I fear she will continue putting her politics above the law, as she has so often done before. So I invited those who supported this nomination to refute the record and the analysis I have stated over the several past weeks, but I do not think one error has been raised and identified by Ms. Kagan's supporters in what I have said. So we are left with the same concern, that Ms. Kagan would ally herself not with the constitutional liberties of all Americans but with the big government agenda of the President who nominated her. In fact, at the hearing, Ms. Kagan was unable to identify any limits on the government's power to control America's economic decisions. What Ms. Kagan perhaps fails to realize is that the people should control their government, not the other way around. That is why no Supreme Court Justice should simply rubberstamp any political agenda of a President or Congress, nor should any Senator. Our liberties are far more precious than any partisan allegiance. After the Constitution was drafted, Benjamin Franklin was asked what kind of government had been created. Franklin replied: A republic, if you can keep it. Again, the choice is ours. Either we embrace our great, magnificent constitutional heritage that I love so much or we let it slip away to judges who believe they can allow their own personal core beliefs and philosophies to help them decide how a case should go. Either we move forward more secure in our freedom or we fall back to the old bankrupt idea of big government--an idea that has failed at every place, every time it has been tried. Let's take a step today in the right direction. Let's listen to the American people and strengthen our commitment to constitutional values. It is that commitment that impels me to vote against this nomination and why I urge my colleagues in both parties to do the same. I see the chairman of the committee, Senator Leahy. He and I don't agree on this nomination, but he is a proven professional chairman. He has gone through a host of these nominations. He is tough, but he is fair. He let us have our say. I thank the chairman for the privilege of working with him on this important constitutional effort.

Mr. SESSIONS. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SESSIONS. Mr. President, I would like to express my appreciation to my staff who worked tirelessly during these past few months on this nomination. They spent many long hours combing through and distilling information in hundreds of thousands of documents provided by Solicitor General Kagan, the Clinton Library and the Pentagon. On a short timeline, my staff worked around the clock to prepare for the hearing before the Judiciary Committee, which occurred merely 49 days after President Obama announced Solicitor General Kagan's nomination to the Supreme Court. Because of their hard work and dedication, our members were well-prepared and well-informed, which allowed us to conduct a fair and thorough hearing. Mr. President, I would like to thank my staff and Senator Leahy's staff, the Judiciary Committee staff, for their fine work during this nomination process. It has gone on for a number of weeks, and it has been very stressful, with a lot of late nights, and people really have worked hard. I believe that has provided us with good and accurate information. I particularly would like to express my appreciation to my staff director, Brian Benczkowski, on whom I have relied repeatedly through this process, for his good judgment and wise counsel, his integrity and experience as we have dealt with this difficult challenge. I would also note my chief counsel for nominations, Danielle Cutrona, who has also worked exceedingly hard, as well as my deputy staff director, Matt Miner. I would like to acknowledge and thank the other hard-working and talented lawyers on my permanent staff who worked on this nomination, including William Smith, Ted Lehman, Bill Hall, Mark Patton, John Ellis, and Kimberly Kilpatrick. I would also like to extend my appreciation to the talented lawyers who joined my staff as Special Counsels specifically to work on this nomination, including Ralph Johnson, Jason Tompkins, and Susanna Dokupil. And I would be remiss if I did not mention the efforts of our Law Clerks, two of whom dedicated their time while studying for the bar exam, including Amanda Lavis, Ed Liva, and Taylor-Lee Wickersham. I would also like to acknowledge our dedicated support staff: Lauren Pastarnack, Sarah Thompson, Andrew Bennion, Allison Busbee, Kate Laborde, and Ivy Williams. Finally, I cannot overstate the important work done by our press team. My Communications Director Stephen Boyd, Press Secretaries Sarah Haley and Stephen Miller, and Press Assistant Andrew Logan have worked tirelessly throughout this process. All of these individuals shouldered the brunt of this enormous task, working late hours and through weekends and holidays. They deserve our recognition for their hard work, professionalism, and dedication to public service. I would also like to thank the other talented lawyers on my staff who, among others I have just mentioned, handled the regular legislative business that came before the Judiciary Committee during this process: Joe Matal, Bradley Hayes, and Sam Ramer. And let me express my gratitude to the Republican Leader and his staff, specifically John Abegg, Josh Holmes, and Webber Steinhoff; along with Republican Policy Committee Counsel Gregg Nunziata who provided invaluable assistance to my staff. I'd also like to express my thanks to Chairman Leahy for his work on this nomination. We didn't always agree on everything, but he was respectful of Republicans' rights during this process and he conducted a fair and thorough hearing. He would not have been able to do that without the help of his staff, including his Staff Director and Chief Counsel Bruce Cohen and his Chief Nominations Counsel Jeremy Paris. Finally, I would like to thank the Judiciary Committee's Chief Clerk, Roslyne Turner and her assistant, Erin O'Neill. Every one of these talented staff members contributed to this process, and their dedication and hard work helped us conduct a fair and thorough hearing. I extend my heartfelt thanks to each of them. We could not have fulfilled our Constitutional duty of Advice and Consent without them. Mr. President, there are in the hearing nine letters in opposition to the nomination of Elena Kagan to be Associate Justice of the Supreme Court from Gonzalo Vergara, Lt. Col., USAF (Ret); the Judicial Action Group; National Right to Life Committee; Military Families United; the Liberty Counsel; The Ethics & Religious Liberty Commission of the Southern Baptist Convention; the American Association of Christian Schools; the Center for Military Readiness; and the National Rifle Association of America. I ask unanimous consent to have printed in the Record four letters from the National Right to Work Committee; the American Conservative Union; C. Everett Koop, former U.S. Surgeon General, and the Ethics & Religious Liberty Commission of the Southern Baptist Convention.

Mr. SESSIONS. Mr. President, I ask unanimous consent to participate in a colloquy with a number of my Senate colleagues.

Mr. SESSIONS. Mr. President, we wish to enter into a discussion this afternoon about a very critical issue in this confirmation process, and that is the second amendment and the right to keep and bear arms as provided for in our Constitution; the threat that now exists to that right that is plainly stated in the Constitution, and why we think it is worthy of serious consideration. I will say that most Americans are totally unaware, perhaps, that the second amendment and the power of the second amendment hangs by a mere thread. Two five-to-four decisions recently have affirmed the second amendment, but had that vote been different--one Justice voting a different way--the second amendment would not apply to the District of Columbia. It would not be considered a right that would apply even to a Federal Government entity such as the District of Columbia as a result of the Heller case. A more recent case in Chicago, McDonald v. the City of Chicago, dealt with whether the second amendment actually applies to the States and does it only apply to the Federal Government. That was a big deal. If it does not apply to the States, then any State in any city--and many cities are perfectly willing to do this--would have the power to ban firearms entirely, even though the Constitution plainly says you have the right to keep and bear arms. This was the effect of that decision. I see my colleague Senator Wicker from Mississippi here. I wish to ask him if he would share with us: Does he believe Ms. Kagan's record would provide us any insight into her views on the second amendment? Because she would be one of the votes that would be critical as we go forward in the future as to whether that amendment still has power and force.

Mr. SESSIONS. If the Senator will yield, this is a troubling thing. Justice Scalia has been a fierce critic of this, pointing out: What country do you pick? Do judges get to pick their own? It seems to me, from what the Senator said, it is clear that the President's nominee to our highest Court in the United States has felt that the world of international law is more important than studying our own Constitution.

Mr. SESSIONS. I agree. I think we must study what our Constitution says, what the people who wrote it meant, and what rights the people retained for themselves when they created it and gave certain limited rights to the Federal Government. I do believe the history of the second amendment is important. What is the history surrounding the founding of our country and the drafting of the second amendment?

Mr. SESSIONS. Well, did our Founding Fathers actually know this? What was their intent with regard to preserving the right to keep and bear arms when this language went into the Constitution?

Mr. SESSIONS. It is a troubling statement. I think, clearly, it allows her to justify voting--if confirmed to the Supreme Court--to eviscerate the second amendment. There are some earlier cases before the 14th amendment was even passed, or before the first 10 amendments, the Bill of Rights, were applied to the States in any systematic way that you could rely on as precedent, which could indeed trump, in her words, the original intent of the Constitution. What did the people ratify? They ratified the Constitution that, in fact, just before the Founders signed it, they said ``we do ordain and establish this Constitution for the United States''--not some other judicial opinion 100 years later. I think it raises troubling questions about where she stands on that. In the light of Heller and McDonald, which were razor-thin 5-to-4 decisions, made within the last 2\1/2\ years, we have to acknowledge that the Supreme Court is not, with clarity, committed to the plain application of the second amendment.

Mr. SESSIONS. Well, most nominees have not had a record on it, but it is interesting, and perhaps noteworthy, that President Obama, who himself has not been a strong supporter of the second amendment rights, and many of his supporters and Cabinet members are openly hostile to it, the two nominees for the Supreme Court he has submitted, Justice Sotomayor and Kagan, have had records that indicate a hostility to it. Even though Judge Sotomayor, in her testimony, indicated she considered this settled law--the Heller decision--her decision less than a year later in the Chicago McDonald case, on a similar but somewhat different issue, was not consistent with the belief that the Supreme Court had settled the question in Heller. So this was a troubling thing. I think the Attorney General of the United States, Eric Holder, has argued very vociferously to restrict gun rights. This is the top law enforcement officer in the country. I do believe this is a matter of some concern, in fact, that we may be moving into a period in which the government, the big city in Washington, the elites who control this, who come out of an environment where they are not comfortable with guns, are oblivious and insensitive to the right that I believe was critical to our Founders in ratifying the Constitution. They wanted to know that they had a right to keep and bear arms, and it was important to them that the right was in the Constitution. I ask Senator Thune, have any of the outside groups that are concerned about these issues spoken out about this nomination?

Mr. SESSIONS. The McDonald case was a hugely important case. It dealt for the first time in recent memory with the question of whether the second amendment, which had been held in Heller to apply to the Federal Government, whether it passed through the 14th amendment to apply to all the States--and cities are creatures of States, so whether it applied to cities. This is a big deal because it is not generally so much the Federal Government that is willing to deny gun rights, but certain States and certain cities seem very aggressively willing to deny people's second amendment rights. The question for the Court was: Is it a fundamental right in the Bill of Rights, a stated fundamental right, and if it is fundamental, it passes through the 14th amendment and all States must comply with it, just as States must comply with the right to free speech and other rights in the Constitution. By a razor thin 5-to-4 majority, the Supreme Court in McDonald held that it is a fundamental right and does apply to the States, and no State, therefore, and no city can deny an individual right of an American citizen to keep and bear arms. This is a big, important case. Justice Sotomayor--who suggested otherwise in her testimony--as Senator Thune said, her record suggested she would rule that way, rule with the four that it did not apply to the States. It is a big deal.

Mr. SESSIONS. The question becomes: Does it impact a fundamental right? At some point it does. We decided you cannot put a poll tax on people to say you have to pay money for your right to vote. People do not have to pay for the right to speak out about advocate beliefs because you have a right to free speech. I do think these restrictions, as they increase, can reach a point of denial of people's individual right to keep and bear arms. We want to be sure that a judge not only recognizes it is a constitutional individual right but that the judge recognizes that some of these restrictions we accept and are legitimate go too far.

Mr. SESSIONS

Mr. SESSIONS. Reserving the right to object, I think we are a little out of sync.

Mr. SESSIONS. If the Senator from New York wishes, he can proceed to the UC, which I will support, and then I would like to have a few moments to make some comments. That would be fine.

Mr. SESSIONS. Mr. President, I appreciate Senator Schumer's legislation, and I also would support it. It is clearly a step in the right direction, and it is one of the things we need to do. I guess as we leave this Congress to go home and get ready to campaign, many of my colleagues may be able to say they did something that was helpful in eliminating illegal immigration--something other than suing the State of Arizona, where the Department of Justice is trying to block Arizona from participating effectively in reducing the amount of illegal immigration. On June 11, the National Immigration and Customs Enforcement Council, acting on behalf of approximately 7,000 ICE officers and employees-- Immigration and Custom Enforcement--cast a unanimous vote of ``no confidence'' in Mr. John Morton, the Director, saying that he is more interested in politics than in in enforcing our immigration laws. So I am concerned about that. Also, Senator McCain was correct to say that we voted for 700 miles of double-layer fencing, and even appropriated money for its construction. Only 400 miles have been completed and of that, only about 40 miles are double layer. I am not aware that any other construction is ongoing. Why aren't we completing that? It multiplies dramatically the capability of an agent to be effective on a long border if there are barriers there. So I am not happy about our not completing that. It is very much a failure. This Congress committed to the American people more than one time to build that fence and we still have not done it. This is typical of why the American people are not happy with us; why our approval rating is getting close to single digits. You can't get much lower than it is. After much debate, we agreed to build a 700-mile fence, yet we end up getting 400 and saying that is great. Then we have this administration, immediately after taking office causing a big stir by investigating its own ICE agents. ICE agents raided a business in Washington State which was employing a whole bunch of illegal workers and do you know what Ms. Napolitano, the Secretary of Homeland Security says? She says: We are going to get to the bottom of it. Did she mean we are going to get to the bottom of the people who were illegally working and the company who was illegally hiring them? No. She wanted to get to the bottom of what it was this agent was doing trying to enforce the law. She sent a signal throughout the entire Federal law enforcement community. What was that signal? Don't raid businesses. That is exactly what that did. Operation Streamline does work. It absolutely works. CNN had a guy on; he was caught within hours, Senator McCain. They took him down to the border and walked him to the middle of the bridge and let him go back, and he just came back the next day. So this Operation Streamline is really a dramatic improvement where it is in effect. The 287(g) program ought to be expanded, which calls on and provides a mechanism for great partnership with local people. Instead, Secretary Napolitano narrowed the program and when the State of Arizona tries to help DHS, the Obama Administration say: No, that is not a good idea. We are going to sue you. So, in my view, this bill is a good step. I salute my colleague from New York. I think we have some potential to work in the right direction. But there is a lot more to be done, and what is lacking is a firm commitment from this administration and this Congress to end the massive illegality at our border. It is within our grasp to do so. A lot of people think it is not possible--it is possible. We have done it on certain sectors of the border. We could complete that, and then we could begin to focus on what to do about the people who have been here for many years and how to handle that. But until we focus on ending the illegality, we can't get anywhere. So I will be thankful for what we have. Senator McCain would like to add 3,000 more agents, but 1,200 is a step in the right direction. But a number of other things, if done effectively, with the will to reduce the illegality, will work. It is not impossible. The thing about Operation Streamline, and the reason it saves money instead of costing money, is that when it is utilized, the number of people entering illegally goes down because they know they are not just going to be taken back to the border the next day and released to then reenter. They actually get a misdemeanor conviction and maybe some sort of probation, and then they are released and are much, much, much less likely to come back because it would be a more serious offense the second time. I thank the Chair, and I yield the floor.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I rise today to discuss an important matter involving the future of the Tennessee Valley Authority. As you may know, TVA is led by a Board of Directors that consists of nine individuals appointed by the President and confirmed by the Senate. These board members serve for staggered 5-year terms. For some time, it has been understood that each State within TVA's service area should be represented on the board. This makes sense given TVA's diverse energy production and economic development activities, which affect communities in each State differently as do the Authority's various power plants and dams. Recognizing this, President Bush, in 2006, nominated to the board a fabulous individual from my State, Howard Thrailkill. The Senate confirmed the nomination unanimously. Mr. Thrailkill has undoubtedly served with distinction. He was president of AdTran, a successful technology company in Huntsville, and he brought to TVA a familiarity with the complexities of running a large organization. Upon his confirmation, Mr. Thrailkill immersed himself in the financial records, business plans, and technical data surrounding TVA's many functions. He became an expert on the organization in a way that many board members do not. When he identified a poor performing project or a proposal with downsides, he was not afraid to say so. And he was especially familiar with TVA's activities in North Alabama, where he lived. Undoubtedly, Mr. Thrailkill's willingness to devote his personal time and energy to the position was of great benefit to both TVA and its Alabama customers. Unfortunately, Mr. Thrailkill's term on the Board is now nearing its end. I was dismayed to learn recently that President Obama apparently failed to recognize the importance of this position to the people of Alabama, and had nominated an individual from another State to fill it. This is no small matter. Of the seven States that make up TVA, Alabama is the second largest in terms of revenue, the second largest in terms of employees, and the third largest in terms of service area. Also, Alabama is home to several important TVA facilities, such as Guntersville Hydroelectric Dam, Browns Ferry Nuclear Plant, and the Bellefonte facility--which could become one of the first new nuclear power plants in the country. Seven States make up the TVA service area. There are nine seats on the board. It is unacceptable that Alabama's long term representation be put in jeopardy. Accordingly, I have been forced to use my position in the Senate to block the progress of these TVA nominations until this matter could be resolved. I am pleased to inform the Senate today that after a series of conversations with the White House, we have reached an agreement that the next opening on the board will be filled by a nominee from the State of Alabama. That vacancy is expected in March of next year, and we have agreed to begin in the next month discussing which individuals should be considered for this important position. I wish to thank the President and his staff for working with me on this compromise. Senator Carper, who chairs the Environment and Public Works subcommittee that considers TVA nominations, has also stated his willingness to begin consideration of the Alabama nominee early to ensure he or she is confirmed before the start of the term. I thank him for that offer. I am pleased we could reach an agreement on this issue, and I look forward to the Senate confirmation of an individual from my State who will offer strong leadership to TVA in the coming years. Accordingly, I am also pleased today to lift my hold on the nominations to the TVA Board that are currently pending in the Senate. I urge my colleagues to move quickly with the nominations to ensure that the Board of Directors will have a quorum in August so that it may effectively conduct the business before it.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I thank the Senator from Idaho for his comments. He is one of the most capable lawyers in the Senate. He is a practicing lawyer, clerked on the court of appeals, and is scholarly and careful in what he says. I believe he has raised some very troubling points about this nomination that should be considered. I say to Senator Crapo, I notice today that a single sitting Federal judge in California has just wiped out proposition 8 that was passed by a majority of the people in California. I guess there were millions voting on that, which simply said a marriage should be defined as being between a man and a woman. This judge struck down proposition 8 and, obviously, at some point, this will get to the Supreme Court of the United States, as the Senator well knows. It will go first to the Ninth Circuit, on which the Senator clerked, and then it will go to the Supreme Court probably. We will have the nominee who is before us today who has already demonstrated at Harvard that her views about don't ask, don't tell and similar social and marriage issues involve such strong feelings on her part that she has not been able to follow the law. I am worried about that. I think the American people are worried about that, and I think they have a right to be. Let me talk a little bit about today's decision by a Federal judge in California that was replete, in my view, with results-oriented liberal judicial activism. I think that is what it is, as the court explained in substituting its judgment, the judge's judgment and opinion, for the judgment of the people of California expressed in a full statewide referendum. Now this is a powerful thing. Was there some clear statement in the Constitution or law that would invalidate the people's expression of what a marriage should be in the State of California? I submit not. This is what the judge said. [W]hat remains of proponents' case is an inference, amply supported by evidence in the record, that Proposition [8] was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate. So the judge just declared that laws that are on the books in virtually every State in America--and certainly by referendum in California--are improper. States cannot legislate in this area. It is not ``a proper basis'' on which to legislate. That is what activism is. It is a judge replacing the people's views with his views. President Obama has made similar statements. He said that judges should decide cases based on ``one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.'' This was in a floor speech in the Senate delivered from right over there from his desk in which he opposed Chief Justice John Robert's confirmation to the Supreme Court--one of the finest nominees ever to be brought before this body. This is the kind of rationale, the kind of empowerment that many judges feel. Well, they can just use their broader perspective on how the world works or the depth and breadth of their empathy or their deepest values or core concerns. Whose core concerns? The judge's core concerns. What does this have to do with law, I ask? Indeed, I would suggest that this whole litany of matters raised by President Obama is not law. These are invitations for judges to allow their bias to influence how they decide cases, an encouragement for judges to use their power of defining the words of our laws and Constitution to promote their agenda. This is an unacceptable view. It is contrary to the great heritage of law this country is based on and should not be tolerated by the judiciary. When Justice Stevens announced his retirement, whom Ms. Kagan would replace--he served 38 years; he served until age 88--if Ms. Kagan were to serve till that age, she would serve 38 years on the Supreme Court without ever having to answer once to the American people. She has never tried a case. We have no judicial history. She has never really practiced law in any serious way. She has been a political lawyer most of her life. She has been an advocate for a lot of leftwing views and that is all right. You can have a view that the military's don't ask, don't tell policy--law passed by Congress; it is a law not a policy--you can oppose that. That is fine. That should not disqualify you from serving on the bench. You can be against the death penalty and serve as a good judge if you understand that if the law requires the death penalty, you should have to apply it. You cannot obstruct the law because you do not agree with it. This is basic to the understanding of the American jurisprudence system. When Justice Stevens announced his retirement, President Obama rephrased his empathy standard that took a lot of criticism and, indeed, was renounced by Justice Sotomayor in her confirmation hearings last year. He said he wanted a nominee with a ``keen understanding of how the law affects the daily lives of the American people.'' Well, I think that is what Congress is supposed to do. We are supposed to be monitoring how the laws affect the daily lives of the American people. If we do not think, as a matter of policy, it is doing it correctly, we should fix the law, change it, eliminate it, and do whatever is appropriate. That is not the judge's responsibility. The judge's responsibility is to enforce the law, to follow the law, or else he is a lawmaker instead of a judge. When the President announced Elena Kagan's nomination, he said: ``She has often referred to . . . Justice Thurgood Marshall, for whom she clerked, as her hero'' and ``credits him with reminding her that, as she put it, `behind law there are stories--stories of people's lives.' '' Well, there are stories, and a judge should certainly be very aware of the facts in a case. Judges should not deny relevant evidence. But in the end, the judge must find the true facts, and then apply that truly to the law as it is whether they like it or not. Activism arises when a judge allows their personal values, even deepest values, core concerns, broader perspectives on how the world works, and the depth and breadth of their empathy to influence decisions. Isn't that bias? Who knows what these judges believe--they have a lifetime appointment and they get to impose their core concerns on us? No. This is a serious matter. I think the American people understand it because when you empower a judge to do these kinds of things, you have given him control over you. You have given him the power to redefine marriage when the people of the State don't want to. And you have no recourse. They have a lifetime appointment. Some people say nine judges can do that. Only five, really. It only takes five. They meet and have tea and they go to the great salons of Europe, and they get these ideas about how to make America a better place, and they want to come back and get itching to write it into some opinion somewhere. I would say that no drafter of the Constitution or any of the provisions in it at any point that those amendments were adopted would ever have imagined a Federal judge in California would declare that the people of California's decision to define marriage as it has been since the founding of the Republic as between a man and a woman is unconstitutional. Make no mistake. When a judge says something is unconstitutional, this is not a little bitty matter. The American people have no recourse, except to pass a constitutional amendment. It takes two-thirds of both the House and the Senate and three-fourths of the State. They make it so because they say it is so. There is nothing in the Constitution that defines marriage. If it is defined--the most logical argument is that when it was written, if they had wanted to change the definition of marriage, they would have put it in there, because every State in America at the time the Constitution was drafted and every amendment to it defined marriage as between a man and a woman. That is what we get. Right now we have had battles over those kinds of issues. They are the cause celebre of the day, but they become further issues in the future. Do we think maybe in the future it comes down to whether a judge can require the State to raise taxes? Will it require a State to provide insurance to everyone or the Federal Government to do so because the Constitution somewhere said that everybody should have equal protection of the law? Does that mean everybody should have health insurance? We have one nominee President Obama has submitted, Mr. Liu, who says everybody in America is entitled to constitutional welfare rights. Presumably, if you file a lawsuit in front of him, he would order the State to provide welfare to everybody, whether we can afford it or whether the legislature decided that is the right thing. This is what activism is. It is a serious matter. I wanted to speak of a few additional points for discussion that relate to matters that have been raised in the last day or so about this nomination. I am trying to be correct in what I say. I want to be correct and fair. This nominee deserves fair treatment and accuracy, and we should try to achieve that in the Senate. If I have said anything before or say anything now that is in error, I hope my colleagues will call that to my attention and I will be pleased to admit that I made an error, if I have, and correct it. Likewise, I am beginning to wonder--I have said this before--since nobody has corrected any significant matter I have stated, they must be agreeing to it. One of our Senators defended Ms. Kagan by insisting that any arguments she made as Solicitor General were made on behalf of her client, the United States, and should not be held against her. They suggest that her actions as Solicitor General should, therefore, be immune from criticism. In other words, she didn't necessarily do what she thought ought to be done, but she had a duty to defend the law. It misses the point about the Witt case, the important case I talked about in which I criticized her decisions as Solicitor General. The problem with Ms. Kagan's actions in the Witt case is she did not make all appropriate arguments in defense of her client, the United States. She declined to effectively represent her client, the United States. I went into some length about that today. We are not saying that she must agree with every argument she made as Solicitor General in terms of policy. Solicitors General are required by their duty to defend the laws Congress passes. They don't have to agree with the law, but they have a duty to defend it if it is challenged as being unconstitutional or in some other fashion improper. What is most important about this is that in the Witt case, it dealt with the military's don't ask, don't tell policy. People can disagree on that, as I indicated, but it was the law passed by Congress and signed by President Clinton. She spent 5 years in the Clinton White House. She never complained to him about the law, to my knowledge. She didn't protest or quit working for him. She goes to Harvard, however, and bars the military from being able to enter the Career Services Office and recruit students because she didn't like the law Congress passed and her former boss signed. She punished the military officers who were there on campus to recruit Harvard students to be JAG officers in the military. Maybe those officers just got back from Iraq and Afghanistan--we were in two wars at the time--yet they were treated as second-class citizens, not allowed to enter the career services office. Oh, they could call the little veterans group on campus and they could ask them and they could help them. One officer wrote in a memo that was produced by the Defense Department: We were relegated to wandering the halls hoping somebody would stop and speak to us. They weren't able to recruit properly on the Harvard campus. Her suggestion that this was nothing she was doing and unimportant is not accurate. It was a misrepresentation of the grave circumstances that occurred at Harvard when she was dean. She led this effort. She personally led the effort to reverse Harvard's policy and deny the military the right to enter the Career Services Office. They said, Well, it is OK, they can call the veterans groups. They were offended by it. They sent out an e- mail and said we are not able to arrange for these kinds of meetings. We are law students here who happen to be veterans. We can't do what the career services can do to provide assistance to the military. It was plainly against the Solomon amendment which was in effect at all times when she reversed Harvard's policy and began to bar the military from coming on campus. When she came up for confirmation last year to be Solicitor General of the United States and there were cases filed around the country challenging the constitutionality of don't ask, don't tell, it was clear it might fall to her duty to defend that law, and she was asked in committee about it. She was asked: Will you defend the law? She said: Absolutely, she would. She committed to it. Generally she would commit to defending all laws of the United States and, specifically, in answer to a written question, she committed to defending don't ask, don't tell. What I wish to say is that my colleagues were in error in their statements about this because it wasn't that she made arguments to the Court that she didn't believe in and that somehow we are unfairly criticizing her for doing that. What I am saying is there were arguments she did not make that she was duty bound to make to defend the law and actions that she was duty bound to take. It has been said by one of our colleagues that it is ``Lawyer 101'' that an attorney will take positions on behalf of the client even when the lawyer disagrees with it. Well, that is exactly right. An attorney does have an obligation to vigorously defend his or her client, but Ms. Kagan refused to do that. Her client was the United States of America. When the Solicitor General of the United States stands before the U.S. Supreme Court or any lawyer--as I had the privilege to do for 15 years--in the Department of Justice stands up in a Federal court, do you know what they say? The first thing they are asked is, Counsel, the judge will say, is the government ready? And the lawyer says, The United States is ready, Your Honor. The United States is ready. That is who the lawyer's client is: the United States of America. It is not her personal view of don't ask, don't tell. It is not President Obama's interests or idea of what should be don't ask, don't tell; not his views. It is the United States of America. And what is the position she was defending? The lawfully passed statutes of this Congress signed by her former boss, President Clinton, passing the law don't ask, don't tell that was being challenged. I am of the view that in failing to properly defend that case, as I said earlier, she violated a direct, specific commitment she made to the Congress and violated her duty even if she hadn't made that commitment as Solicitor General to defend the laws of the United States. One of my colleagues made reference to Justice Souter, saying: Justice Souter pointed out in a recent commencement address recently [that] different aspects of the Constitution point in different directions toward different results, and they need to be reconciled. Judges do have to do that. Acknowledging these inherent tensions is not only Main Street, it is as old as the Constitution. Well, there is some truth to that, but Justice Souter's speech and others in his philosophical mold are very troubling. In fact, Justice Souter's speech intellectually followed on to Justice Brennan's 1985 Georgetown speech which is clearly the playbook for judicial activism. In it, Justice Brennan, former Justice of the U.S. Supreme Court, stated: For the genius of the Constitution rests not in any static meaning it might have had in a world now dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our time. So if the Constitution's drafters decided that every American from time immemorial, unless the Constitution was specifically amended, had a right to keep and bear arms, Justice Brennan would say, Well, we can look at that. We need to see what the vision for our time is. Maybe we need to consult the Europeans as they did in this recent case, the dissenters in a 5-to-4 vote that narrowly upheld the right to keep and bear arms. Allowing judges to determine the vision of our time is a recipe for legislating by unelected judges. What is the vision of our time is decidedly in the eye of the beholder. It is the job of the elected branches of government to make these calls in our constitutional system, not the unelected judiciary. The job of the judiciary is to interpret the law, not make the law. That is so basic. Don't we all know that? As Professor John Baker of LSU put it: The choice is between two distinct modes of decision- making. Legislators make laws; they do not write opinions. Legislators can legitimately make laws to govern future conduct only. . . . Legitimate judging, on the other hand, concerns the existing law. Interpretation of the existing law, contrary to lawmaking, focuses on the past. Legitimate interpretation of existing law explains the result in a well- reasoned opinion. I think that was nicely said. Judges are not empowered to amend laws, to promote their vision. They are not empowered to alter the meaning of the words of laws or the Constitution to promote their core values. What is Ms. Kagan's view about that? She wrote a law review article entitled ``Confirmation Messes, Old and New.'' It is kind of interesting. She has said nominees should be far more forthcoming when they testify. Most people think she failed to meet the standard in her own law review article. She also quoted Stephen Carter's book, with approval, saying: In every exercise of interpretive judgment, there comes a crucial moment when the [judge's] own experience and values become the most important data. The judge's own experience and values become the most important data? That is not law. I don't know what that is, but it is not law. In a 2004 interview in Metropolitan Corporate Counsel, she said: The attitudes and views that a person brings to the bench make a difference in how they reach those decisions. Is that not biased? Is that not an affirmation that a judge can bring to the bench their attitudes and views, instead of being a neutral umpire, putting on that black robe to symbolize impartiality? I think it is. This is a philosophy of law that is afoot in many of our law schools. There is no doubt about it. It is out there. People advocate it. She wrote about and advocated it. Many judges are adhering to this, and it is wrong. They are not empowered to do these kinds of things. In one interview in a magazine, in 2004, she said: There should be a range of opinions on the [Supreme] Court; it should not just be about lawyerly qualifications. The opinions we need on the Court are that a judge should identify the law and then follow it. That is what the view should be. Mr. President, people are still asserting things about the Harvard issue that I don't think are quite accurate. I do not believe she handled the Harvard military question in any way that is defensible. I have looked at it very carefully. I have laid it out in some detail. And now I wish to respond to some of the statements that have been made. One their efforts has been to point out and to assert that Elena Kagan treated veterans at Harvard Law School with great respect, hosting them for private dinners in her home, publicly recognizing them and thanking them for their service to our country. She has been praised by several law school veterans who have said Ms. Kagan is not antimilitary. Those things have some truth to them, and Senator Leahy has introduced some letters. But, for the most part, Dean Kagan's outreach to Harvard Law veterans began after all this brouhaha and the resistance to military recruiting occurred on campus and things got tense. It was not such a pleasant time. The military veterans were not comfortable. She talked about other students being uncomfortable with the military on campus. She said that herself. So the annual veterans dinner I referred to began in 2006, after the university president, Larry Summers, had instructed the law school to restore equal access to military recruiters and after the Supreme Court had rejected her argument that the Solomon Amendment, which Congress passed to make sure these law schools either admitted the military or ceased getting Federal money--her argument that the Solomon amendment did not require Harvard to give the military access to the career services office was rejected by the U.S. Supreme Court 8 to 0. According to the military veterans who attended Harvard Law School during this period, 2004 to 2006, the dinners were actually initiated at the suggestion of the school--the university's dean of students, Ellen Cosgrove, to whom the military veterans had expressed their concerns about the hostile campus environment toward the military. In other words, they had gone to Dean Cosgrove and complained about the hostile environment on campus toward the military, and she started some of these dinners. It was only later that Dean Kagan--who was speaking at one time to a protest rally while the military recruiter was in the next building trying to recruit students--she was out there speaking to a protest rally about the military being on campus, saying how wrong she thought the military was. Most law school veterans who have praised Dean Kagan were either not present at the law school during the height of the controversy or were not then even in the military. Almost all of them were more recent graduates or current students at Harvard, people who liked her outreach efforts at that time. But that was after she was forced to let the recruiters back on campus by the President of the school and by the Supreme Court. None of the individuals who have written and said positive things were members of the student veterans association that she tried to conscript to take care of the needs of the military recruiters. None of them wrote any such letter. I wished to share a few of those thoughts and again challenge my colleagues to be as accurate as they can in what they say, either for or against this nominee. She is entitled to fair treatment, but these matters are very serious. The American people want judges who are committed to their oath, and their oath says they are to be impartial, that they are to do equal justice to the poor and the rich, and that they are to serve under the Constitution and laws of the United States, not above it. That is the commitment they must have. We, the Senate, should never vote to confirm any judge--liberal activist or conservative activist--who, once they put on that robe, will not be impartial or provide equal justice but will allow personal biases, core beliefs, prejudices or politics to influence how they decide cases. That is a disqualifying factor. We must know that any nominee is committed to the ideal of impartial justice. I don't believe this nominee has ever demonstrated that she would be unbiased in these situations, and, indeed, the record indicates she has consistently allowed her personal feelings to override the law and her duties. Therefore, I will oppose the nomination. I yield the floor and suggest the absence of a quorum.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I thank Senator Brown for his important comments, and I join him in expressing my sympathy for their loss and my appreciation of the courage and dedication of our men and women in uniform. I rise to speak of my concerns over Ms. Elena Kagan's refusal as Solicitor General of the United States to defend Federal laws--laws with which she clearly did not agree and with which her President, President Obama, did not agree. Her handling of this matter alone, in my opinion, as one who spent 15 years in the Department of Justice, who loves the Department of Justice, who believes in the rule of law in America, is a disqualifying act by her and should disqualify her from serving on the Supreme Court. I laid out my concerns at her confirmation hearings and asked her to respond. I gave her at the hearing almost 10 minutes to do so. It was the only time I noticed she actually used notes. Her explanation was not satisfactory. It is well known by anyone who followed the process that Ms. Kagan has personally opposed the don't ask, don't tell law--a law passed by a Democratic Congress and signed into law by President Clinton. It was not merely a military policy but a Federal law. She served 5 years in the administration of President Clinton in the White House. I am not aware that she ever protested to him about signing that law. The law says, in effect, that openly homosexual persons may not serve in the U.S. military--don't ask, don't tell. Ms. Kagan was a fierce critic of that law when she was dean of Harvard Law School. She justified her decision while at Harvard to ban military recruiters from the campus Career Services Office--in clear defiance of subsequent Federal law, the Solomon Amendment--on the basis of her opposition to don't ask, don't tell. The Congress passed four separate Solomon Amendments to make sure people such as Dean Kagan were not treating our military on campus as second-class citizens, which is how they were being treated. She argued while at Harvard that don't ask, don't tell was a ``moral injustice of the first order.'' I accept that as her opinion. I do not agree with it, but I accept that as a legitimate opinion. But I do not accept her actions blocking military recruiting as legitimate. Given her strong personal opposition to don't ask, don't tell, she was specifically asked when she appeared before the Senate Judiciary Committee on her nomination to be Solicitor General of the United States--the position in the Department of Justice that defends Federal law before the Supreme Court of the United States, the greatest lawyer job in the world, some say--whether she would be able to fulfill her duty as Solicitor General by defending this very law she had opposed. She promised the committee under oath that she could and that she would defend the law. She said that her ``role as Solicitor General . . . would be to advance not my own views, but the interests of the United States.'' That is absolutely correct. That is the duty of the Solicitor General. It is a duty, not a matter of discussion. She stated she was ``fully convinced'' that she could ``represent all of these interests with vigor, even when they conflict with my own opinions.'' She said she would ``apply the usual strong presumption of constitutionality'' to the don't ask, don't tell law as reinforced by ``the doctrine of judicial deference to legislation involving military matters.'' There was no doubt about what Ms. Kagan's duty was as Solicitor General if, as was expected, she would be confronted with legal challenges to the don't ask, don't tell law. She had a clear duty under the law and in her duty as Solicitor General to defend this law of the United States. In addition, she had explicitly promised the Senate under oath that she would defend this specific law, even though she disagreed with it. As it happened, Ms. Kagan was, indeed, faced with the opportunity to defend the don't ask, don't tell law immediately after she took office. Right after she took office, there it was. In the months leading up to her confirmation, two Federal courts of appeals had decided cases challenging don't ask, don't tell. In one decision, the First Circuit--is in the Northeast of our country--upheld the law. They said it was lawful and constitutional. In the other case, called Witt v. Department of Air Force, the Ninth Circuit, on the west coast, considered to be the most liberal circuit in America, refused to uphold the law. The Ninth Circuit's decision in the Witt case basically did two things. I hope my colleagues will pay attention to this because it is important. Did the Solicitor General, who now wants to be on the Supreme Court, fulfill her duty or did she not? The Ninth Circuit ordered the military to go back down to the district court. This is the Court of Appeals, one step below the Supreme Court. They said: No, we want this case to go back to the district court to be decided after a trial, during wartime, I might add. The military would be required to justify the don't ask, don't tell law under a new legal standard that the court had invented out of whole cloth. The Ninth Circuit said the government would not be allowed to defend the law as a rational, uniform policy that applies to all Armed Forces, as had been done in the First Circuit where the law was affirmed. The First Circuit affirmed it as a matter of law, without any big trial. Was this statute, this congressional action setting military policy, unconstitutional? The First Circuit said it was not. It was lawful. But the Ninth Circuit said the military would have to prove that the application of don't ask, don't tell ``specifically to [this individual plaintiff--Witt] significantly furthers the government's interest and [that] less intrusive means would [not] achieve substantially the government's interest.'' That was a devastating standard. It was very problematic. After that unprecedented decision in mid-2008, the Solicitor General's Office then in the Bush administration immediately recognized the seriousness of the decision and authorized an appeal to the full Ninth Circuit en banc and asked the full circuit to overrule this three-judge panel decision. The court did not agree to take the case and overrule the panel. But there were strong objections from several judges of the Ninth Circuit who thought their colleagues had clearly gotten the case wrong, as I truly believe they had. At that point, the government was faced with a decision: Should they appeal the Ninth Circuit decision directly to the Supreme Court? By that time, the Obama administration had come into office and, Ms. Kagan, who believed this law was immoral and an injustice of the first order, had been confirmed as Solicitor General. It fell to her to decide whether to take the appeal to the Supreme Court. She refused. Instead, she decided to let the Ninth Circuit decision stand and allow the case to go back down to the trial court for a prolonged trial. In so doing, she failed in her fundamental responsibility as Solicitor General and to her sworn promise to the Senate to defend the statutes of the United States regardless of her personal policy views. I make that statement with care. I gave her 10 minutes, virtually uninterrupted, to explain why she made this decision, because it troubled me, as someone who understands the importance of the duties of the Solicitor General. If you do not fulfill your duties of Solicitor General, should you then be promoted to the U.S. Supreme Court, I ask? This was a very bad decision, in my view. Her long answer I thought was hollow and at many points disingenuous. She gave three reasons why she acted the way she did. First, she said she concluded it would be better to wait to appeal to the Supreme Court until after trial because a trial would build a ``fuller record'' of the case. Once the facts were better developed, she claimed, the government might be in a better position before the Supreme Court. Second, she said that allowing the case to go back to the district court would help the government in a future appeal because it would be able to ``show what the Ninth Circuit was demanding that the government do'' in order to defend the don't ask, don't tell statute. Going through a disruptive trial, she said, would allow the government to tell the Supreme Court just how invasive and ``strange'' were the demands of the Ninth Circuit on the government. Well, they were invasive and strange. There is no doubt about that. Third, she said, the appeal in the Witt case would have been ``interlocutory''--that is an appeal in the middle of a case rather than at the end, after a final judgment--and the Supreme Court prefers not to hear these kinds of appeals. None of her explanations are credible, in my view. If you analyze this fairly, I do not believe any one of those explanations can be sustained. Another explanation, however, can be sustained. It is true that appellate courts, including the Supreme Court, prefer to hear appeals at the end of a case rather than at the middle, but that is a decision the Court can make for itself and does make for itself. It is not something the Solicitor General should decide on the Court's behalf and not to take up a case when they have a good legal basis to take it up and to avoid an incredibly burdensome trial would undermine military policy in 40 percent of the country. The Ninth Circuit includes 40 percent of America under its jurisdiction. At the very least there would have been no harm to the government in asking the Court to review the case early. No harm whatsoever. If the Court refused to take the case at that time--interlocutorily--the government could always take a later appeal. Any concerns about avoiding early appeals were clearly outweighed in this case. There already had been a split among the circuit courts of appeals. The Ninth Circuit ruling squarely conflicted with the First Circuit, and it was also at odds with the decisions from four other circuit courts on similar issues. The Ninth Circuit opinion presented clean questions of law: Should this matter be decided as a matter of law, as the First Circuit said, or should it be decided only after some prolonged trial, as the Ninth Circuit said? This was a critically important matter that I think the Supreme Court, recognizing we are a Nation at war, recognizing this is an important Defense Department policy, would have agreed to hear. Ms. Kagan's second explanation--that letting the case go to trial would allow the government to just show how painful a trial would be-- makes no sense. The Ninth Circuit made it very clear in their opinion that the government was going to have to justify the application of don't ask, don't tell to this specific plaintiff--Ms. Witt--to prove that this specific plaintiff was going to harm the military if she were to be allowed to remain in the Air Force. It was also obvious that such a trial was going to be disruptive to the military and that it would harm the ``unit cohesion'' that Congress had set out to protect when it passed don't ask, don't tell. Ms. Kagan's predecessors in the Department of Justice and in the Solicitor General's Office immediately recognized the damage that would result from allowing the Ninth Circuit decision to stand. That is why they asked for a rehearing immediately. At that time, this is what they said: [The Ninth Circuit decision] creates an inter-circuit split . . . a conflict with Supreme Court precedent, and an unworkable rule that cannot be implemented without disrupting the military. I think they were exactly right on that. The Ninth Circuit decision, they went on to say, made the constitutionality of a Federal law setting military policy for the entire Nation ``depend[] on case-by- case surveys, taken by lawyers, of the troops in a particular plaintiff's unit.'' And that is true. Immediate review, they insisted, was ``needed now to prevent this unprecedented and disruptive process.'' Most importantly, Ms. Kagan's first explanation to the Judiciary Committee for her decision to send this case back to trial--that she thought the government's case would benefit from a fuller factual development of the case--was simply false. The records of this case on remand to the District Court show that Ms. Kagan knew--knew--at the time she decided to let the case go back to trial that such a trial was going to be massively disruptive. I have studied the record in the case as it headed for trial, where lower ranking lawyers in the Department of Justice are now trying to defend the case at trial. These lawyers have been fighting desperately to avoid or to limit this open discovery process. According to these career attorneys, the discovery process is ``threatening'' and ``jeopardizing the unit morale and cohesion.'' Remember, Ms. Kagan told us--the members of the Judiciary Committee, during her confirmation testimony--that building a factual record would be good for the government's case. But here the career lawyers who are defending the case are contending that building this factual record is bad for the government, and these lawyers are right. The plaintiff in this case has asked for and received, by virtue of the Ninth Circuit order--and this was plainly predictable from reading that order--access to the personnel records of the entire military unit of the plaintiff. They have demanded depositions of other soldiers who served with the plaintiff before she was separated from the military. They have demanded the right to interview soldiers about their private lives, their personal views of their former colleague, and their private thoughts about sexuality. As I have said before, this is not just a case in which Ms. Kagan showed bad legal judgment. She did not send her client, the U.S. Air Force, down this path by mistake, it seems to me. She knew this was going to happen, and I believe she had reasons other than a strategic plan to defend the law as her reasons in making this decision. We know Ms. Kagan realized a trial would harm the military's interests because she said so to the lawyers on the other side of the case in the weeks before she made the final decision not to appeal. Once the case was back in this trial court, in this district court, the plaintiff's lawyers in one of the hearings made this statement to the trial judge there: [T]he government just doesn't want any discovery. I have heard that message from the government clearly--loud and clear. [We] were asked to meet with the Solicitor General of the United States in April, and we heard that message loud and clear that discovery is a big problem. So they had been asked, these lawyers, to go to Washington to meet with the Solicitor General to discuss the case and were told at that meeting that discovery was bad. Yet she testified in our hearing just a few weeks ago that she thought it was good for the government. In May of 2009, as Solicitor General, she made a decision to block an appeal to the Supreme Court. Before she made that decision, she had already met with these opposing counsel. And who were these lawyers? They were lawyers from the ACLU who were committed to the defeat and the elimination of this don't ask, don't tell law. She told them ``loud and clear'' that developing a factual record would be bad for the government. Yet she told us just a few weeks ago that it was good; that it was going to help the government's case. It appears to me that the most plausible--almost the only--conclusion that one can reach is that Ms. Kagan and the Obama administration generally were trying to keep the Supreme Court from deciding the constitutionality of don't ask, don't tell. Ms. Kagan, like the President, is personally opposed to don't ask, don't tell. The President has asked Congress to repeal don't ask, don't tell, and there is legislation pending now in the Senate that would repeal that law. But given the record of the Supreme Court on questions of military personnel policy, I am confident that the Ninth Circuit's radical decision would have been overturned had the Solicitor General taken the appeal. And given the timing of the case, we would likely have been reading a few weeks ago of a Supreme Court opinion holding that don't ask, don't tell was a constitutionally legitimate exercise of Congress's power over military affairs. If you think about it, you can see why such a ruling--upholding the constitutionality of a law that the administration wants to repeal--might not be politically helpful to them in that process. As I said earlier, there was another case dealing with don't ask, don't tell where the First Circuit had upheld the law. Of the 12 plaintiffs involved in that First Circuit case, 11 of them decided to abandon their case and not appeal. In other words, they lost, they could have appealed to the Supreme Court, but hey abandoned their appeal and accepted the loss. Why would they do that? Why would their lawyers allow them to do that? Because, it appears to me, those defendants and their lawyers-- and included among some of those lawyers were Ms. Kagan's former colleagues from Harvard Law School--knew that the Supreme Court would likely uphold don't ask, don't tell if they took an appeal. That is what they did not want. Only one of the plaintiffs insisted on appealing to the Supreme Court--1 of the 12--in the face of much resistance from his legal advisers who, as you can see, were less interested in vindicating the right of those specific defendants than they were trying to create the best possible strategy to undermine or to defeat don't ask, don't tell. Interestingly, Ms. Kagan, again, did what the lawyers attacking the law wanted. One of the defendants wanted to appeal the First Circuit case. She could have allowed that appeal to go forward and gotten a definitive Supreme Court ruling. But she wrote the Supreme Court that they should not hear the appeal of the First Circuit; they should not accept that case for Supreme Court review. By urging the Court not to hear an appeal from that decision she denied the government a definitive decision from the Supreme Court, which I think was within their grasp. Actually, one of the reasons she urged the Supreme Court not to take the appeal in the First Circuit case was because she said the Ninth Circuit case would be a better case for the Court to review. Then, when the Ninth Circuit case was ripe, she did not appeal it. In effect, Ms. Kagan prevented the Supreme Court from ruling on the constitutionality of this law--a law she so strongly opposed. So I think it is clear. It would seem to me to be clear. If I am wrong about this, I would like to see my colleagues explain it. I offer them an opportunity. I don't think I am wrong. I have tried a lot more cases than Elena Kagan ever tried--since she has never tried one. I think it is clear her strategy was to avoid a Supreme Court ruling-- because she thought the Supreme Court would uphold don't ask, don't tell--and to drag out the proceedings in the lower court in hopes that maybe the administration would be able to convince Congress to repeal the law before the Supreme Court ruled. The record shows she was willing to do so, even if it meant this military unit would be turned upside-down by the lawyers from the ACLU. Remember, in each case--even in the First Circuit case, where they had lost--the ACLU lawyers did not want that case to go on appeal. And in the Ninth Circuit case they did not want the case to go on appeal to the Supreme Court. Why? To me, that is the final argument. Why did the Solicitor General acquiesce and adopt the very policy the ACLU lawyers wanted--not to appeal to the Supreme Court--other than that she did not want a definitive ruling and agreed with them it was likely the Supreme Court would affirm the law? I think that is what we are talking about. I hate to say that. That is why, in an unprecedented way--I don't think it has ever happened since I have been in the Senate, certainly for a Supreme Court nominee, that they were given a full 10 minutes to answer uninterrupted why they made that decision. Her answer was unsatisfactory for the Solicitor General, the lawyer for the United States of America, whose duty and explicit promise was to defend don't ask, don't tell, even though she and her President did not agree with it. I have expressed my concern in this process, that Ms. Kagan's background and her record is more that of a political lawyer than a real lawyer. She certainly has never been a judge. She has never been, for any real period of time, a real lawyer. She went right out of law school, had 2 years in a private law firm and 14 months as Solicitor General. These political lawyers, sometimes they do not grasp the responsibility and duty and the power and the beauty and the majesty of the American legal system. They think it is all politics. They have not been before judges as I have been, as have many other lawyers by the hundreds of thousands in America, and seen justice rendered day after day--and sometimes seen injustice rendered--and know how to admire and appreciate justice and objectivity and legal acumen. Ms. Kagan's willingness to advance a political agenda without regard for her duty strikes at the very root of the rule of law in America, our greatest strength. As the hymn says, our liberty is in law. A person who cannot constrain herself to her proper role, to fulfill her duty to defend law, even when it runs contrary to her personal views, is no more likely to follow a law she dislikes if she is elevated to the Supreme Court. I suggest that is a threat to justice in America. I do think this is another incident--there are others in the record of this nominee--that indicates this is a political lawyer, an agenda- driven lawyer, someone who has never served as a judge and never truly practiced law. The horrendous decision in not pursuing the opportunity to get a final decision from the Supreme Court on don't ask, don't tell, I believe, was made for reasons other than faithfully fulfilling her responsibilities as Solicitor General to defend these laws. And I believe it is disqualifying for one who seeks to serve on the highest Court in the land. I yield the floor and suggest the absence of a quorum.

Mr. SESSIONS. She did use that word.

Mr. SESSIONS. I certainly do not believe it is. As the Senator has noted repeatedly--and we serve on the Armed Services Committee together--this was not a military policy; this was a law passed by this Congress and signed by President Clinton, with whom she worked for 5 years. But she was punishing these young officers, many of them, demeaning them, making them be treated in a second-class way because she did not agree with that policy.

Mr. SESSIONS. There is absolutely no doubt about it. She openly sent an e-mail to all students and said she considered this policy that Congress adopted a moral injustice of the first order. On one occasion a military recruiter was apparently working in one building, and she spoke to a protest rally outside the next-door building, creating a climate that was certainly hostile to the good efforts of that military officer.

Mr. SESSIONS. No. In fact, it took the president of Harvard, Larry Summers--now President Obama's chief financial economic adviser; he was then president of Harvard--he had to reverse her decision when he was faced with the loss of Federal funds. The entire recruiting season, however, was lost before the military realized they were systematically being blocked. And they protested to the university, and finally she was overruled by the president.

Mr. SESSIONS. Absolutely. I think that is the essence of what happened. She eventually acknowledged that at no time was the Solomon Amendment not in force at Harvard when she was there. I know Senator McCain remembers that we passed four versions of the Solomon Amendment because every time one was passed, these law schools or others figured out a way to get around it. We finally wrote one they couldn't get around. This was systematic obstruction by universities that I think does not speak well of them. She also filed a brief with the Supreme Court attacking the law, and, as the Senator noted earlier, the Supreme Court rejected that brief 8 to 0.

Mr. SESSIONS. Absolutely. Harvard had agreed to follow this law. Her predecessor as dean, Dean Clark, had agreed to do so. She seized upon an opportunity, without legal authority, to cease to comply with that law, denied the military full access to the campus as the law required, and eventually had to be reversed by the president of Harvard.

Mr. SESSIONS. Well, you know, I think it might. If they have good judgment and are good people, I am not so worried where they come from. But when you have five people on the Supreme Court--and we will have that if she is confirmed--all from one of the boroughs of New York and most of them from Harvard or Yale, then I think it does raise questions about it. Maybe someone from Arizona could handle that job.