Jeff Sessions

Mr. SESSIONS

Mr. SESSIONS. Perhaps so. With regard to those young officers who were on the Harvard campus, my understanding of the military--and the Senator's experience is far greater than mine--is that many of those officers may well have just returned from Iraq or Afghanistan. You don't just serve all your career as a recruiter. I mean, they may have been combat officers or helicopter pilots or convoy leaders putting their lives at risk. I wonder how the Senator thinks they felt when they faced this kind of discrimination.

Mr. SESSIONS. I thank the Senator. I would note that one of the arguments that has been made--and my time is about up--has been that: Well, nothing was really done at Harvard. We asked a veterans group, a veterans organization to take care of all of these things we were refusing to allow the military to have through the Career Services Office. And this is what the veterans group said at the time. They sent an e- mail to everybody on campus because it offended them that they were being asked to do a job that should have been done through the Career Services Office. They sent this e-mail: Given our tiny membership, meager budget, and lack of any office space, we possess neither the time nor the resources to routinely schedule campus rooms or advertise extensively for outside organizations, as is the norm for most recruiting events. . . . [Our effort] falls short of duplicating the excellent assistance provided by the Office of Career Services. So this argument has been repeatedly made: Don't worry about it; the veterans groups were taking care of all of this. It is bogus. It is incorrect. And she repeated that. I am not surprised to get that kind of statement from the White House spin doctors, but a nominee under oath----

Mr. SESSIONS. Should not have made the statement she did in that regard. I yield the floor.

Mr. SESSIONS

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SESSIONS. Mr. President, a number of comments have been made about Ms. Elena Kagan's actions at Harvard in barring the military from utilizing or having access to the Career Services Office and asking the veterans group--that was not able, as they said--to somehow fill that role. I will take a few minutes, as we have a few minutes left, to deal with one of the arguments I have heard my colleagues repeat; that, well, she did not reduce recruiting, therefore, no harm, no foul. I do not agree. There was a foul and there was a harm. But even if there had not been a harm, there was a foul. It was very wrong to blame the U.S. military for the don't ask, don't tell policy, and very, very, very wrong to blame some young officer who was there to recruit people to serve in the JAG Corps of the U.S. military, perhaps having just returned from combat duty in Iraq or Afghanistan, and to be told: You can't come in the front door of the building. You can't use the recruiting services because we don't like your policy. But it was not the military's policy; it was the Congress's policy. It was President Clinton's policy. He signed the bill. I do not believe that Ms. Kagan complained to President Clinton when she was on his staff for 5 years and he signed the bill. Was there any protest to him? No. Her protest was lodged, and the discrimination was directed against the men and women in uniform who defend our country, who had nothing to do with the policy. That is a fact, and I do not think it is a matter that should be lightly dismissed. ``Oh, the recruiting didn't go down,'' they say. Well, let's just talk about that. They said she merely reinstated Harvard Law's pre-2002 policy, which forced the military to work through this veterans association, and recruiting did not suffer. But that is not true. Harvard's pre-2002 policy--before she became dean--had obstructed military recruiting. As an internal memorandum authored by the recruiting chief of the Air Force JAG Corps in 2002 states--this is what the chief of recruiting for the Air Force JAG said: Career Services Offices are the epicenter for all employer hiring activities at a law school. . . . Without the support of the Career Services Office, we are relegated to wandering the halls in hopes that someone will stop and talk to us. . . . [D]enying access to the Career Services Office is tantamount to chaining and locking the front door of the law school--as it has the same impact on our recruiting efforts. The military's ``after action reports'' from pre-2002 recruiting efforts organized through the veterans association on campus show mixed results, but recruiting clearly improved after her predecessor, Dean Clark, granted the military equal access through the Career Services Office. This is what the Air Force said: Since Harvard's policy change, the Air Force has . . . had very positive responses from a number of students. . . . [I]n the 16 months since Harvard's change in policy, we have attracted at least four Harvard students, when in the prior twelve years, we recruited a total of only nine. That is while the discrimination was in effect. The statistics reveal that our recruiting efforts have greatly improved since the change in policy by Harvard to comply with the Solomon Amendment. We only assessed 2 Harvard Law students in the 1990s. This is not accurate, what we have been hearing. Then she reversed that policy and went back to the policy of discrimination. The reports show it obstructed their recruiting efforts. The chief of recruiting for the Air Force JAG Corps was repeatedly blocked from participating in Harvard's spring 2005 recruiting season, after Ms. Kagan changed the policy, saying this: Harvard is playing games and won't give us an OCI [On- Campus Interviewing] date; their official window for employer registration has closed. Their recruiting manager told me today that she's still ``waiting to hear'' whether they'll allow us. The chief of Air Force JAG recruiting also recounted a conversation with Harvard's dean of career services after the close of the recruiting season, when you are supposed to be recruiting--they missed the whole season--this is what he says, talking about the dean.

Mr. SESSIONS. Mr. President, I don't see anyone here--I ask unanimous consent to speak for 1 additional minute.

Mr. SESSIONS. The dean of career services told the Air Force JAG: He stated that the faculty had still not decided whether to allow us to participate in on-campus interviews. . . . I asked him if I could at least post a job posting via their office and he said no. The Army was blunt in their afteraction report: The Army was stonewalled at Harvard. Phone calls and e- mails went unanswered and the standard response was--``We're waiting to hear from our higher authority.'' That certainly would appear to be Dean Kagan, who had reversed the policy, personally. This is what the veterans group said when Dean Kagan reversed the policy and said: We want you to help take care of the military. We are not going to let them in our office. They are not worthy to be in our office. This is what they wrote and sent an e-mail to all the students: Given our tiny membership, meager budget, and lack of office space, we possess neither the time nor the resources to routinely schedule campus rooms or advertise extensively for outside organizations as is the norm for most recruiting events. . . . [Our effort] falls short of duplicating the excellent assistance provided by the HLS Office of Career Services. To claim that 2005 had increased recruiting is inaccurate. The 2005 class at Harvard would have been recruited during the time the military enjoyed full access of the career services office before she reversed the policy, not in the spring of 2005, a mere 3 months before graduation. They were counting the graduates, not people who signed up. The recruiting has not been shown to increase after this effort. Finally, I would note: What was the purpose of all this? Why did they have this policy? It was to harm and hamper the U.S. military in their effort to recruit on campus. Apparently, it was effective in reducing their ability. They had a direct intent to punish the military for a policy the military did not establish but Congress and President Clinton established and it was wrong then and it is wrong now.

Mr. SESSIONS. I thank the Chair and I yield the floor.

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

Mr. SESSIONS. Madam President, there has been some suggestion in the course of the discussion of Elena Kagan's nomination that her decision to bar the military from access to Harvard's recruiting office was a principled one and had no impact on the lives of Harvard law students in the military. I think that is not a fair way to describe it. Her decision relegated the military to second-class status at Harvard Law School. Military recruiters were, as she indicated in one statement, ``alienating'' to some students and were not welcome, and students who made public their interest in the military service otherwise might be ostracized in that climate. But she wanted the student veterans to quietly help the classmates who might be interested in military service to overcome the obstacles there. Well, let me just say it this way: Ms. Kagan protested against don't ask, don't tell in reality by obstructing the mission of the junior military officers who had at that point in their career been assigned the duty of recruitment at law schools around the country, recruiting JAG officers for the military. But these junior officers had no control whatsoever over this law. We often refer to it as a military policy, but it is not a policy, it is law passed by the Congress of the United States. So her effort to make a political point at the expense of the U.S. military and in defiance of clear Federal law passed by this Congress calls into question, really, her willingness to be governed by that law because she was punishing the military, really demeaning them, not allowing them equal access like any other law firm, presumably, in America and demeaning them in that fashion. So I really think this issue is not a little one. It is a very big one. It says something very significant about her ability and her objectivity. So for that reason, I think it calls into question her ability to serve on the bench as an objective person in justice. I see the majority leader. He just appears out of the blue. I know he is busy, so I will yield the floor.

Mr. SESSIONS. If the Senator will yield?

Mr. SESSIONS. Madam President, I will just say to the leader, I am a bit hurt. I do not think this is a necessary step, that the leader has indicated we will move forward in maybe 3 days and finish this debate. And to file a cloture motion--if it in any way suggests there is a deliberate attempt on this side to block an up-or-down vote, I will just say I have tried to make clear that I have a high standard before I would attempt to block an up-or-down vote, and I have not suggested and I think very few on this side have suggested--a vote at the time that is right should go forward. I would expect that it would.

Mr. SESSIONS. Well, I just do not want somebody to come back and say in the future that we had to file cloture to get a vote on this nomination, and you filibustered this nomination. I feel pretty strongly about that and am a bit uneasy that the leader has felt he needed to do this. I thank the Chair.

Mr. SESSIONS

Mr. SESSIONS. Madam President, I appreciate Chairman Leahy. He is a strong and effective leader of our committee. We agree a lot of times. I try to work with him, and sometimes we disagree. One thing we will soon be doing that I look forward to very much is going to the White House--maybe in 30 minutes or so--to participate in the signing of a bill to eliminate the vast disparity between crack and powder cocaine sentences. The sentencing mechanism under the guidelines I think was unfair and needed to be corrected. I have been working on that issue for some time, and so has Chairman Leahy. We certainly agree on a lot of issues and get some things done, but we do not agree on this nomination. The office of Justice of the U.S. Supreme Court is one of the most important positions in our National Government. Justices are granted a degree of independence unequaled anywhere in the United States. Justices hold lifetime terms, subject only to impeachment, and Congress may not even reduce their pay. Why did the Founders take such a step? They wanted our courts to be impartial, doing justice to the poor and the rich under the Constitution and laws of the United States, as their oath says, and they did not want them subject to political or other pressures that might affect their objectivity. They wanted judges who could do the right thing year after year, day after day. Presidents get to nominate, but the Senate must confirm. This advise- and-consent power the Constitution gives is a confirmation process; it is not a coronation. Here, five Justices on the Supreme Court can hold--and four of them recently voted to, not the five necessary to render a majority opinion--that a company cannot publish a book or a pamphlet that criticizes a politician before an election. Five justices can hold that the government can allow States and cities to deny Americans the personal right to keep and bear arms, a right clearly stated in the Constitution. The American people have no direct control over these Justices. All they have and what they have a right to expect is that our Justices exercise self-control year after year, decade after decade. If this young nominee, Elena Kagan, were to serve to the age of the individual she seeks to replace, she would serve 38 years on the Supreme Court. Well, I am not able to support Elena Kagan for this office. I believe she does not have the gifts and the qualities of mind or temperament one must have to be a Justice. Worse still, she possesses a judicial philosophy that does not properly value discipline, restraint, and rigorous intellectual honesty. Instead, she seems to admire the view, and has as her judicial heroes, judges who favor expansive readings of what they call the living Constitution; whereby, judges seek--and in President Obama's words, who certainly shares this view--to advance ``a broader vision of what America should be.'' Well, I don't believe that is a responsibility or a power given to judges--to advance visions of what America should be. Whose vision is it they would advance, I would ask. It would be the judge's vision. But they weren't appointed for that purpose. They were appointed to adjudicate cases. President Obama's judicial philosophy, I think, is flawed, and I certainly think Ms. Kagan shares his philosophy. The President basically said so when he appointed her. Her friends say it is so. Her critics say so. Her record of public action says so, and the style and manner of her testimony at the hearing evidenced such an approach to judging. I don't think it is a secret. I think this is pretty well known, that this is not a nominee committed to restraint or objectivity but one who believes in the power of judges to expand and advance the law and visions of what the judge may think is best for America. Ms. Kagan has been described as collegial, engaging, a consensus builder. These are fine qualities in many circumstances, and I am sure she possesses them. She seems to. But as to personal discipline, clarity of mind, the ability to come quickly to the heart of a matter, objectivity or impartiality, and scrupulous intellectual honesty-- characteristics essential for a judge--not so much has been said. Perhaps this is so because many liberal activists in America have lost faith in the idea of objectivity, which means they have lost faith in the reality of objective truth, the finding of which--the finding of truth--has been the goal, the central focus of the American legal system since its creation. Our modern law school minds and some false intellectuals far removed from real trials--and I have had the honor and privilege to have spent 15 years trying cases before Federal judges and so I have a sense of this, I truly believe--are removed from these trials and from the necessity of rules for civil order. They think, many of them do--these professors and theoreticians--that laws are just tools for the powerful to control the powerless and that words can't have fixed meanings. Things change. We can't consult 16th century dictionaries to find out what the Founding Fathers meant when they wrote our Constitution. Indeed, Justice Sotomayor recently confirmed this when she quoted, with approval, the line: ``There is no objectivity, just a series of perspectives.'' Americans are sick of political spin by politicians, and they do not want it from judges. They reject judges who rely on their empathy, as the President said a judge must have and that is what he looks for in a judge. The American people don't believe judges should rely on their empathy to decide legal cases or seek to advance their vision of what America should be. They know Justices are not above the law. They know Justices should be neutral umpires, not taking sides in the game. Above all, they know judges--especially Supreme Court Justices--should not legislate from the bench. I do not desire that the Supreme Court advance my political views. It is enough, day after day, that the Court follows the law deciding cases honestly. No more should ever be asked of them. I might not agree one day with this case or that one, but we have a right to expect those judges would be objective and not promote agendas. A recent commentator once said: ``We liberals have gotten to the point where we want the court to do for us that which we can no longer win at the ballot box.'' Well, this nominee, I think, in my honest evaluation, comes from that mold. Yes, she is young, but her philosophy is not. It is an old, bankrupt judicial activism--a philosophy the American people correctly reject. In her writings, her judicial heroes, her extensive political activities, her actions at Harvard to unlawfully restrict the military, her hostility to congressional actions against terrorism in a letter she wrote, her efforts to block restrictions on partial-birth abortion while in the Clinton White House, her arguments before the Supreme Court last year that Congress can ban pamphlets criticizing politicians and, perhaps the most disturbing to me as someone who spent 15 years in the Department of Justice, her actions as Solicitor General of the United States, whereby she failed to defend the don't ask, don't tell congressional law--not military policy, a law she had openly, deeply opposed but promised to vigorously defend were she to be confirmed as Solicitor General--leave no doubt what kind of judge she would be: an activist, liberal, progressive, politically minded judge who will not be happy simply to decide cases but will seek to advance her causes under the guise of judging. In addition, her defense of these positions at her hearings, her testimony, in my opinion, lacked clarity, accuracy, and the kind of intellectual honesty you look for in someone who would sit on such a high and important Court. Indeed, her testimony was curious. She failed to convey to the committee, in my opinion, a recognition of the gravity of the issues with which she had been dealing and the nature of her role in dealing with some of these issues that she was involved with in her career. She seemed to suggest that things happened around her and she did all things right and no one should get upset about it. Some of these concerns, I think, could have been overcome, had we seen the superb quality of testimony at her hearing as given by that of Justices Roberts and Alito at their hearings. But, alas, that we did not see, not even close. Glib, at times humorous, conversant on many issues but not impressive on any in a more serious way, in my view. Based on so little serious legal practice--only 2 years, right out of law school in a law firm and 14 months as Solicitor General--this perhaps should not be surprising. The power of the testimony of Roberts and Alito did not spring fully formed from their minds either, though both seemed to be naturally gifted in the skills needed for superior judges, and I fear Elena Kagan is not so blessed. While she is truly intelligent, the exceptional qualities of her mind may be better suited to dealing with students and unruly faculty than with the daily hard work of deciding tough cases before the Supreme Court. But Roberts and Alito, on the other hand, were steeped in the law over many years as lawyers and judges. That is who they were. That is their skill. That was their craft. That was their business. They understood it. It showed. Ms. Kagan did not show that. I believe that lack of experience was part of the reason her testimony was unconvincing. I think a real lawyer or experienced judge who had seen the courtroom and the practice of law would not have tried, as she did, to float their way through the hearing in the manner she did. Her testimony failed to evidence an understanding of the gravity of the issues with which she was dealing and the important nature of her role in them. She seemed to suggest these events just happened around her, none of which was her responsibility. Several times in the course of her testimony she inaccurately described the circumstances and the nature of the matters in which she had been engaged, to a significant degree. Her testimony was more consistent with the spin the White House was putting out than the truth. I was surprised and disappointed that she was not more candid and did not, through accurate testimony, dispel some of the false spin that had been put out in her favor. So now we are at the beginning of the discussion of the Kagan nomination. While I have been firm in my criticisms of the nominee, I have given considerable thought to the criticism that I have made and tried not to be inaccurate in them. I believe they are correct. But if I am in error, I will be pleased to admit and correct that error. No nominee should have their record unfairly sullied in this great Senate. That would be wrong. I, therefore, ask and challenge the supporters of the nominee to point out any errors in my remarks as we go forth so we can, above all, get the facts straight. The matters I will set forth today and later are serious. There is disagreement, I believe, between what the record, the facts, and the testimony show and the White House spin and even the Kagan spin--and I use that word carefully. So let us, therefore, begin this debate in all seriousness. Let us get to the bottom of these matters. There is a truth. We can ascertain what happened. Let us find out what happened in these matters. Let us get to the bottom of it. Some raise the question of how many Republicans will vote for the nominee. Another question to ask is: How many Democrats will vote against the nominee? I call on every Senator to study the record and make an informed and independent decision. We are not lemmings. We have a constitutional duty to make an independent decision. So I urge my Democratic colleagues to not just be a rubberstamp, to not allow political pressures to influence your decisions but conduct an independent and fair analysis of the nominee. I believe if Senators strongly advocate and believe judges should follow the law, not make it; that they should serve under the Constitution and not above it; that they should be impartial and objective--if Senators believe in that--they should have very serious trouble with this nomination. At this moment I am going to briefly mention a few of the serious concerns that were raised in the committee. I will in greater detail go through each of them in the next several days. I am sure other Senators will talk about them also. I will attempt to do so honestly and fairly, and at the end I will be listening to see if somehow I have misjudged the nominee on these matters and whether I should change my views. But I am very serious when I say the actions of this nominee over the entirety of her career indicate an approach to judging that is inconsistent with the classic American view of a judge as one who shows restraint, who follows the law, who adjudicates the matters before the court, and who is objective and fair. One of the more serious issues that has been discussed quite a bit is the nominee's handling of the U.S. military while she was dean at Harvard. She reversed Harvard's policy and banned the military from the campus recruiting office. During that period of time a protest against the military was held. She spoke to that protest crowd while in the building next door a military recruiter was attempting to recruit Harvard students for the U.S. military. She participated in the writing of a brief to oppose the don't ask, don't tell policy which she deeply opposed. The U.S. military did not have a policy called don't ask, don't tell. That was a law passed by the U.S. Congress and signed by President Clinton. It was the law of the land and it was not their choice. They followed, saluted, and did their duty. Yet Ms. Kagan barred them from the campus at Harvard. On four different occasions this Congress passed laws to try to ensure that our military men and women, during a time of two wars, were not discriminated against on college campuses in this country. One of them was a few months before, finally, it was written in a way they could not figure out a way to get around it. That was shortly before she barred them from the campus, subjecting Harvard to loss of Federal funds, which resulted in the military, when they finally realized that she had reversed this policy and found out they had been stonewalled and the front door of the university had been closed to them, appealed to the president of Harvard University and he reversed her position. It was not justified. It was wrong. It should not have been done. She did not seem to complain about the policy when she worked for President Clinton, who signed the law. But she punished the men and women who were prepared to serve and defend our country, and Harvard's freedom to carry on whatever these silly activities they want to carry on. So this is not a little bitty matter. When she was nominated for Solicitor General, this was raised and she was asked what if this don't ask, don't tell law is challenged in the Court? We know you oppose it. We know you have steadfastly opposed it. Will you defend it? It is the law of the land. You will be Solicitor General. You represent the U.S. Government before the Supreme Court. Will you defend it? She flat out said that she would defend the laws passed by Congress and specifically promised to defend don't ask, don't tell. This is a matter of some importance. I asked her about it, gave her opportunity to respond. She took 10 minutes--I did not interrupt her--with her explanation of why she did not assert an appeal to the Ninth Circuit ruling that seriously undermined don't ask, don't tell, because we know President Obama opposes it and we know she opposed it. We know the ACLU opposed it. They were the litigants in this case. She met with the ACLU. The ACLU did not want the Ninth Circuit case to go up to the Supreme Court. Why? The reason is they expected the Supreme Court would affirm the law. So what did Elena Kagan do? Did she vigorously defend the law? Did she take the opportunity to take this case to the Supreme Court and seek its affirmation by the Supreme Court? No, she allowed the case to be sent back--without appealing it--to a lower court to go through a long, prolonged process of discovery and trial that is disconnected to the plain fact of the legality of the policy. She did not properly defend the laws of the United States and she did not defend the law in this matter. The Solicitor General has that duty whether they like the law or not. Congressional actions, when challenged, should be defended, particularly one so easily defended, in my opinion, as this one. I believe that is a serious matter, so serious that if my analysis is correct, that she failed to defend that action after explicitly having promised to do so, then this is disqualifying in itself. She would have allowed her personal views, political pressures from perhaps her appointing officer, President Obama, to influence her decision in a way that went against her duty as Solicitor General. We are going to talk about that in great detail as we go along. As Solicitor General in the 14 months that she was there, she approved a filing of a brief calling on the Supreme Court to review and overturn a ruling by the Ninth Circuit Court of Appeals that had affirmed an Arizona law that said Arizona businesses that failed to use E-Verify or otherwise hire people who are illegally in the country would lose their business license. There is a Federal statute that explicitly says States can revoke licenses of businesses that violate our immigration laws. This is quite a bit stronger case than the other Arizona case that I think is improvidently being challenged, also by the Obama Department of Justice. But she approved this and again the trial court had ruled the law was good. The Ninth Circuit, the most liberal activist circuit in the country, approved it unanimously, and now it is before the Supreme Court and now she asked that the Supreme Court take it and reverse that. I think this was bad judgment legally, and I believe it is another example of her personal policy views influencing the decisions she made as a government official--not the kind of thing you want in a Supreme Court Justice. Then there was the time she was in the Clinton White House and became involved in the great debate we had in the Senate, that went on for a period of years, over the partial-birth abortion issue, where unborn babies are partially removed from the mother and there are techniques used to remove the child's brain. It is a horrible procedure. The physicians group, the American College of Obstetricians and Gynecologists, ACOG, had issued a finding that there was never any medical necessity for this horrible procedure that Senator Daniel Patrick Moynihan referred to as so terribly close to infanticide. President Clinton apparently was prepared to support a ban on this procedure. But Ms. Kagan, as a member of his staff, advised that it might be unconstitutional. In her notes from her time at the Clinton White House, she said the groups, that is, the pro-abortion groups--the groups will go crazy. She even got ACOG to issue a new statement and was able to influence President Clinton to oppose the legislation. Six or 8 years went by before we finally passed a law banning the procedure. When I raised this at her hearing, she tried to make it seem like she had nothing much to do with it, like she just happened to be in the White House. She said, ``at all times trying to ensure that President Clinton's views and objectives were carried forward.'' That is all I was doing. She was asked about that: If that was your view, say so. Well, I was just doing whatever the President wanted me to do. I do not think that was an accurate analysis of it. Sometime after it became clear that ACOG had reversed its position--it caused quite a bit of national controversy. She was right at the center of that, contacting the leaders of ACOG and prompting them to change the wording of their statement without talking to the professionals on the committee that had issued the original analysis. There was never any need for this kind of procedure to take place. This was concerning to a lot of members of the committee. Her testimony is relevant to that. With regard to the second amendment, she used the same language in her testimony to give the impression that she understood that the Heller and the McDonald cases, recently out of Chicago, were settled law and implied that if she were on the Court, she would vote to uphold the right to keep and bear arms, which is plainly in the Constitution. I went back and asked her again. Settled law became mere precedent. That precedent is the 5-to-4 decision in two cases, Heller and McDonald, where by one vote the Supreme Court is upholding the right to keep and bear arms. If one vote were to switch, the Court could rule 5 to 4 that any city and any State in America could ban completely the right to keep and bear arms, violating what I would say are the plain words of the Constitution. Her actions, both as a law clerk and in the Clinton White House, indicate she has a hostile view to gun ownership. She grew up on the upper west side of New York. It is pretty clear she is one of a group who sees the NRA as a bad group and does not believe in gun ownership as a constitutional right. This is a serious matter because it is such a narrowly decided Court. Who is this nominee? We will learn more about it as the days go by. I believe her actions, her background, and her approach to judging is unhealthy. It is not the kind of thing we need on the Supreme Court. It evidences a tendency to promote her political agenda rather than being objective. Who is she? Vice President Biden's chief of staff, Ron Klain, a lawyer with whom she worked closely in the Clinton administration and a longtime friend, said of her not long ago: Elena is clearly a legal progressive . . . I think Elena is someone who comes from the progressive side of the spectrum. She clerked for judge Mikva A renowned Federal activist judge-- clerked for Justice Marshall-- One of the most activist Justices on the Supreme Court-- worked in the Clinton administration, worked in the Obama administration. I don't think there's any mystery to the fact that she is, as I said, more of the progressive role than not. What does that mean, a legal progressive? In the early 20th century, progressives thought that intellectuals and the elites in this country knew more than the great unwashed, and they were seeking to advance political agendas that went beyond what a lot of people thought was appropriate and constitutional. The progressives saw the Constitution as an impediment, not as a protector of our liberties, of our freedom, of our prosperity, of our property. They saw it as an impediment to getting done what they would like to do. It is a dangerous philosophy. Ultimately, all our liberties depend on faithful adherence to the Constitution--the free speech, free press, the right to a trial by jury. All those things that are so important to our rights are in that document. This nominee is indeed of that background. She is not sufficiently respectful of the plain words of the Constitution. She will be the kind of activist judge who seeks to advance her vision of what America should be. That is not an appropriate approach for a Justice on the Supreme Court to take. That is why I will be opposing the nomination. I suggest the absence of a quorum and ask unanimous consent that time under the quorum call be charged equally to both sides.

Mr. SESSIONS

Mr. SESSIONS. Reserving the right to object, and I will object, I wish to express a few thoughts before my colleagues who are here and who wish to speak on another subject. I wish to be heard on the nomination process and maybe I can be recognized after I make that objection. Hoping to be so recognized, I object.

Mr. SESSIONS. I do object.

Mr. SESSIONS. I object.

Mr. SESSIONS. Mr. President, I appreciate my colleague from Colorado raising these issues. The Senate does have a responsibility to treat nominees fairly. I have worked to do that as ranking member of the Judiciary Committee, and they are entitled to be considered on the floor. But things don't always go as smoothly as you would like. I will make a couple of points that are very important. President Obama's nominees are moving considerably faster--to both circuit and district courts--than President Bush's nominees, many of whom were subjected to incredibly unjustified actions to obstruct their nominations. My good friend, the Senator from Delaware, says we should use the Golden Rule. I would say that is always a good policy. I am pleased that nominees are moving faster than President Bush's nominees were moved. But if we ask for parity, consistency, and if we ask for fairness, based on what was done to President Bush's nominees, they would be held considerably longer, and a lot of nominees would never even get a hearing, and they would wait for years. I want to mention a few facts about these matters. President Obama's circuit court nominees have waited for a hearing only 59 days, on average. President Bush's nominees waited, on average, 176 days to even have a hearing in the committee. Actually that was in his first Congress, and the Republicans had a majority at that time. But they had to wait 247 days to get a hearing for his entire Presidency. Whereas, we are now having hearings in the Judiciary Committee in 59 days. We had one yesterday, 14 days after the nomination of a district court nominee. That doesn't sound like a railroad to me. President Obama's district court nominees have waited for hearings only 45 days, on average, while President Bush's district court nominees waited 120 days for hearings in the committee. So they come out of committee at an unprecedented rate. That is all right; we will deal with that. But sometimes we have to ask ourselves, how fast should you move a nominee to the floor? Should you have some time that the nominee lays over? Let us talk about the time from nomination to confirmation. I guess that is the ultimate test. How long do you wait between the time a person is nominated until the time they are confirmed? President Bush's circuit court nominees, on average, waited 350 days from nomination to confirmation. By contrast, President Obama's circuit court nominees, on average, are being confirmed almost twice as fast, in 208 days. Similarly, President Bush's district court nominees, on average-- people have said somehow this is unusual, the way President Obama's nominees are being treated--waited 178 days from nomination to confirmation. By contrast, President Obama's district court nominees, on average, are being processed almost 2 months faster, about 130 days. I think it is important to look at other processes that cause disturbances in the Senate. It should not go unnoted that President Obama bypassed the Senate and recess-appointed Donald Berwick as Administrator of the Centers for Medicare and Medicaid Services less than 3 months after his nomination, and without even a Senate Finance Committee hearing taking place. He was very controversial. The reasoning offered was that the Republicans are blocking this appointment and that he has to go forward. Without even having a hearing? That is particularly odd, since that position was vacant for 16 months before we even had a nomination and hasn't had a confirmed Administrator since 2006, and now they want to move it through with a recess appointment, bypassing the confirmation process entirely, without even having a hearing in the Finance Committee. I have to note that the President has been slow to nominate. There are now 100 vacancies in our courts--20 in the circuit courts and 80 in the district courts--but only 48 nominations are before the Senate. So the President has been a bit slow, perhaps, in making his nominations. But he should take care; they don't have to be rushed. The Republic won't collapse if there is a vacancy for a reasonable period of time. But one reason the confirmations are as they are is because nominations are not being submitted in a rapid way. Look at the fourth circuit. A lot of complaints have been made about the fourth circuit. This is stunning to me. You know the old story about the man who killed his parents and then complained that he was an orphan. One Bush nominee--a highly qualified nominee--for the fourth circuit waited 585 days and never got a hearing. He was rated by the American Bar Association as ``unanimously well qualified.'' He was a presiding judge in the district court on which he served. He had served in the Department of Justice. He had been point guard on the Clemson basketball team in the ACC. I always thought that clearly meant he knew how to make decisions if he could be a point guard at Clemson and dish out the ball. He was also asked--out of the entire United States of America--by Janet Reno to investigate President Clinton. She had so much confidence in him, she picked him. He didn't indict the President. You would think they would be appreciative of that. No, they blocked him. He never got a hearing. When President Bush left office, there were five vacancies on the fourth circuit. What an outrage. They were systematically blocked by the Senate and the Democrats, who are now complaining so piously, and since that time, two have been filled. Now they are complaining that some other vacancies haven't been filled. Give me a break. Look, the nominations are moving rapidly out of the Judiciary Committee. They are coming on the floor. When they get here, they get caught up in all kinds of messes. The leaders on both sides have to talk and they have to work out floor time. Some of these nominees are going to have some debate about them. You have heard a number of names mentioned. I point out to my friend from Colorado that Mr. Martinez had a lot of ``no'' votes. He was a top lawyer with the ACLU in Colorado. He doesn't seem to me to be the most mainstream nominee. The American people are very tired of judges who get on the bench, with lifetime appointments, and start advancing all kinds of agendas and legislate from the bench. They expect this Congress to make sure that whoever gets nominated will show restraint and will follow the law, and follow their oath to serve under the Constitution and not above it. So he is a controversial nomination. Mr. Butler from Wisconsin--I know he is controversial. Mr. Butler has twice run for the Supreme Court of Wisconsin and twice lost. He ran in 2000 and lost by a 2 to 1 margin. He was appointed to a vacancy on that court in 2004, and then ran for election when term of the vacancy ended. Those kinds of elections are normally won easily. He lost that, because his reputation was that of one of the most pro-plaintiff judges in the United States. This is a serious concern when we appoint somebody on the bench with a lifetime appointment and he can't be voted out of office. Others have problems. Some of them are due to come up and be voted on for sure. It just takes time. I am not able to make the decisions that the leaders of our two parties make. They try to work out matters here. Some judges come forward and some don't. I have kind of quit worrying about who gets picked and who doesn't. That is above my pay grade. I will say that, at least with regard to any fair analysis of the numbers, the Obama administration judges are moving faster than the Bush administration judges moved. There is a growing concern about the philosophy that President Obama has about judges. He said that when he looks for a judge, he wants to know if they have empathy. Empathy for who? Which party does he have empathy for? He wants a judge who will be willing to help advance ``a broader vision for what America should be.'' I am not aware that judges need to be promoting visions. Whose vision? My vision, or the judge's vision, or President Obama's vision? Whose vision is the judge going to promote? Who is he going to have empathy for? This party or that party? The oath a judge takes is that they will do equal justice to the poor and the rich, and they will serve impartially. I believe Chief Justice Roberts' metaphor that a judge should be a neutral umpire is a simple and beautiful way to say what a judge should be. That doesn't mean he takes sides in a lawsuit because he has more empathy for one party than the other. We have a serious problem. This is the definition of activism. It politicizes the court. These kinds of empathies and other matters are not law; they are politics. We do not need politics in the court. Some of these nominations are controversial and are going to take some time to move forward. We are not a rubberstamp over here. We do not intend to stand by and have this court packed with nominees who are not absolutely committed to following the law as written whether or not they like it. The Constitution says in its Preamble: ``We . . . do ordain and establish this Constitution for the United States of America,'' not some constitution a judge who got appointed last week thinks it ought to be but the one that actually was passed. Otherwise, we do not have law in this country. We have a great heritage of law. We have a responsibility to move nominations. I made a commitment to the President, to Chairman Leahy, to my colleagues on both sides of the aisle that to the extent I am able to do so, we are going to treat nominees fairly. We are not going to misrepresent their records. Certain nominees are going to be moved forward. I expect I will vote for over 90 percent of the nominees, giving deference to President Obama. Some of them I may be worried about, but I am not certain they are not going to be faithful to the law. I am going to give the President deference, and I am going to vote for them. If I do have objections, I am going to raise those objections. I believe the American people expect this Senate to scrutinize a nominee to make sure they will be faithful to the law and follow it whether or not they like it. My colleagues know a lot of these nominees. They care about them. It does seem like a long time. Perhaps we ought to get together, I say to Senator Udall, in a ``do unto others'' situation and see whether we can figure a way to be more effective in moving nominations as a whole and not have it change if Republicans were to elect a President next time. How we really got into the controversy--and I will conclude with this--was President Clinton had almost 95, 98 percent of his nominees confirmed. When President Bush got elected, Democratic Senators-- Senator Udall was not here then--met in a retreat. This is according to a New York Times article. Appearing at the retreat were Marcia Greenberger, Laurence Tribe, and Cass Sunstein--three very aggressive, liberal lawyers who believe that judges should be activists to promote the law, advance the law in a certain way. The report was that agreement had been reached to change the ground rules of confirmations. That is exactly what happened. President Bush nominated eight judges. He nominated Roger Gregory, an African American who had been nominated by President Clinton but was not confirmed before President Clinton left office, as a gesture of good faith. He nominated another Democrat, I think out of his 8 or 10, within a few months. Those were promptly confirmed. The rest of them waited months and years. Some never got confirmed. A filibuster took place that we had never seen before. We even had Justice Sam Alito filibustered by the Senate, one of the most fabulous nominees we have seen and who is doing a great job on the Supreme Court. All of this never happened before. It was quite a change. We are having more difficulties now than we probably should have. I say to Senator Udall, I appreciate his commitment to the nominees he knows and respects and would like to see confirmed. I am sorry they have not been brought up as quickly as he would like. When they get out of committee, it basically becomes a leadership matter. They have a lot of issues on the agenda, and frequently good nominees can get tied up in them. I yield the floor.

Mr. SESSIONS. Reserving the right to object, I do say to my colleague, perhaps we should, in the spirit of harmony, work together and see if we can get a commitment that will be binding, not just for this Congress but perhaps one in the future, that would do a little better job than we have done in moving nominations. I do think there is room for criticism and we could do better. And I feel a responsibility, I say to Senator Udall, to work with good people on the other side to try to do that. With regard to these two nominees, Mr. Chatigny is a controversial nominee. He stayed the execution of a serial murderer, and, among other things he did, he found that sexual sadism was a mitigating factor that would mitigate against him receiving the death penalty after he had been duly convicted and sentenced by a Connecticut jury. Mr. Liu is probably the most controversial activist nominee before the Senate. He has written that people have a constitutional right to welfare. He would be very controversial. I say with regard to those two, when they are brought up, Majority Leader Reid will have to be sure there is considerable time available so the debate can be effective. For those reasons, Mr. President, I object.

Mr. SESSIONS. I object.

Mr. SESSIONS

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

Mr. SESSIONS. Mr. President, I wish to share a few thoughts on the nomination of Elena Kagan to the Supreme Court. I will share some other thoughts as we go along, and I will be producing for my colleagues a summary of some of the concerns I have about the nomination that would explain why I and a number of other Senators voted against this nomination in committee and why I think that calls for our colleagues to vote against the nomination on the floor of the Senate. This nominee has the least experience of any nominee in the last 50 years, perhaps longer than that, having practiced law only about 2 years, right out of law school, with a large law firm, never having tried a case or argued a case before a jury of any kind, and spent 5 years in the Clinton White House, spent time teaching and being active politically. Those are issues that I think go to the basic qualities that you look for in a nomination. She had 14 months as the Solicitor General of the United States, and that is a legitimate legal job, but as I will point out, she didn't perform very well in that job and made some serious errors that I think reflect a weakness in her judicial philosophy. So while there is no sustained legal practice that gives us a direct view of her judicial philosophy, other things do indicate it. There is plenty of evidence that I think will show this nominee is not committed to faithfully following the law. The Constitution's words say we ``do ordain and establish this Constitution for the United States,'' not some other constitution--not a European constitution, not a constitution as viewed by somebody in Argentina or France or wherever but our Constitution, passed by real Americans through the process that calls upon American input to pass that Constitution. Judges take an oath to be faithful to our Constitution. They take an oath to serve under the Constitution and laws of the United States. So I think the evidence will show that this nominee believes judges have powers that go beyond what a judge has. This is what we have taken to calling an activist judge--a judge who believes they can advance the law, further the law, bend the law; that the Constitution is not plain words or a contract with the American people but a living document, which means they can make it grow into what they would like it to be; that they can set policy from the bench. That is not law, that is politics. Judges are required to adhere to the law. This is the great American principle that we are taught from elementary school on. This nominee, pretty clearly, is a legal progressive and acknowledges that in her own testimony. When I asked her if she was, she didn't acknowledge it to me. But later, when she was asked again about it, she acknowledged to Senator Lindsey Graham that she was. That is what liberals have taken to calling themselves today--progressives-- apparently thinking that is more popular than calling themselves liberals. I don't know why they have taken to doing that, but progressivism has a history in this country, and I think the people who call themselves legal progressives today are indeed in the tradition of progressivism that was rejected in the early part of the 20th Century by the American people. President Obama is a legal progressive, I am convinced. He is a lawyer, a good friend, and somebody we all liked when he was in the Senate. But he has a view of the law that I think is a progressive view. He seeks, he says, to advance a ``broader vision of what America should be,'' and that is what judges should do. I am not in agreement with that. I don't think judges have that responsibility. They have never been given that responsibility. Their responsibility is to objectively decide discrete cases before them. Some have complained that Justice Roberts somehow was an automaton by declaring that a judge should be a neutral umpire--just call the balls and strikes; that he can't take sides in the game. I think that is a very wonderful metaphor for what a judge should be--a neutral umpire. Judges cannot take sides in the game. That is not what they are paid to do. That is not what they are empowered to do, not in the American legal system. Maybe somewhere else but not in our system. The American people understand that clearly. They are not happy with judges who legislate from the bench, who think they know better, who consult some European somewhere, with very little accompanying scientific data, to say the world has advanced and evolved and the Constitution has grown and is alive and read new words into it that were not in there before, and we can find those words and we can have a broader vision for what America should be. I do not think that is law. It is not law, and I do not think the American people want that kind of judge. I do not believe in this nominee's slight differences of gradations in judicial philosophy. I do not think it is just a little bit more activist and it is a little bit more advanced law philosophy, and somebody else does not and there is not much difference. I think there is a very serious difference, and it is a question of where the American people allow power to reside--power over themselves. They can vote us out of office. I suspect people will be voted out of office this November. People are not happy with us, I can tell you that. Polling numbers show Congress is at the bottom of popularity more than it has ever been--11 percent or something. The question is, Who is that 11 percent who is happy with this crowd? Where are they? I have not met any. I would say the American people are not enamored with the idea that somehow, when a person puts on that robe they have been anointed with greater wisdom than if they had to run for office and answer to them. If you want to be a politician, run as a politician. Don't go for it on the bench. I think the President has an incorrect view of that, frankly, a very seriously defective view of that. In a speech in the Senate just a few years ago when he was a young new Senator, he opposed now Chief Justice John Roberts, one of the finest nominees ever to come before this Senate. What a fabulous person he was. How magnificently did he testify and what a good background he had. He was recognized as a premier appellate lawyer in America and argued 50 cases, I believe, before the Supreme Court--more than almost anybody, certainly more than anybody his age--and demonstrated the kind of skill you look for in someone who would sit on our Nation's Highest Court. President Obama voted against him. He said he thought that in truly difficult cases Judge John Roberts would rely on precedent and try to follow the law. He said that you can't rely on precedent or ``rules of statutory or constitutional construction.'' Instead, he argued that judges must base their rulings 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.'' That is what President Obama said a judge should do. I would assert that is contrary to the American heritage of law. That is not law. If you make decisions based on your deepest values--you mean the judge's deepest values? His core concerns? One's broader perspectives on how the world works and the depth and breadth of one's empathy? That is what a judge should do? Not in the U.S. order of jurisprudence, not the way I understand it, and I do not think it is the way the American people understand it either. In a speech to Planned Parenthood, President Obama said he hoped judges would reach decisions on ``their broader vision of what America should be.'' His nomination of Ms. Kagan indicates that he believes she fits that bill. If we look at her record and speeches and background, I think it is fair to conclude she does. In a Law Review article she once declared that the Court primarily exists to look out for ``the despised and the disadvantaged.'' I think the Court is required to do justice. The oath a judge takes says a judge should do equal justice to the poor and the rich. In another Law Review article, Ms. Kagan said, dealing with confirmation--actually the title of it was ``Confirmation Messes, Old and New.'' She quoted Stephen Carter's book, ``The Confirmation Mess'' with approval, writing: In every exercise of interpretive judgment there comes a crucial moment when the judge's own experience and values become the most important data. Well, I don't think so. What do you mean the judge's own values become the most important data? You mean we are ceding to the judge their personal values instead of faithfully following the law and the facts as written? In her Oxford thesis she wrote: Judges will often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends. Such activity is not necessarily wrong or invalid. The law, after all, is a human instrument, an instrument designed to meet men's needs. The law is a set of commands from the government that have to be consistent with our Constitution. If they are, they should be followed, if they have been duly enacted by Congress. The American people can elect a new Congress and change those laws if they desire, but until they do so they remain the law and I do not think judges are supposed to be steering the law to promote certain ethical values. Let me ask you, whose values are they? Whose ethical values are they? The judge's? Is that what we put them on the bench for, to be able to steer the law to promote their ethical values? Some people wrongly say the Constitution is defined by the nine Justices on the Supreme Court. Not so, really. If we want to be cynical about it, if they are not faithful to the law, five Justices can redefine the Constitution. Recently, four Justices voted to basically eviscerate the second amendment, saying the constitutional right to keep and bear arms was not a personal right and that the Constitution did not apply to the States and counties and cities; and in effect a city, Chicago, could have basically eliminated all guns in their city, and it would not have violated the constitutional guarantee of the right to keep and bear arms. They just wrote it out of the Constitution, I guess--and they cited foreign law about it. We know other cultures are not as accepting of people having guns as in the American culture. It is just different. What does foreign culture have to do with ours? This is the kind of thing we are talking about. It played out in real cases and creates a real abuse. She goes on to say that judges will often try to mold and achieve ``certain social ends.'' Such activity, she says, ``is not necessarily wrong or invalid.'' I think it is wrong or invalid. Am I being unfair to the nominee, Ms. Kagan? I don't think so. When asked about Ms. Kagan's record, a person in a very good position to know, Gregg Craig, former counsel to President Obama in the first year or two of the administration, who knows Ms. Kagan and who reviewed her when she was considered, apparently, for the first Sotomayor appointment, said: She is largely a progressive in the mold of Obama himself. I have come to believe that is exactly right. I mean, I just believe that is right. I think the President looked around the country to pick somebody young, who would serve a long time. She is 50 years old. If she serves as long as Justice Stevens whom she is replacing, she will serve 38 years. It is a lifetime appointment. It could be longer. So Mr. Gregg Craig said ``she is largely a progressive in the mold of Obama himself.'' The President was a community activist and a lawyer. He has taught some constitutional law--I am sure he is a good teacher. But if he is teaching this kind of philosophy I think it is not good, sound, judicial philosophy, and his approach I don't think is good. I believe he looked for somebody who shared his views. As 59 Democratic Senators, he expects them to, lemming-like, go down the line and vote for whomever he puts up there, so he has put up somebody he thinks follows his views. A second person who has been in a good position to know Ms. Kagan is Vice President Biden's chief of staff, Ron Klain, who worked in the Clinton White House closely with Ms. Kagan when she spent 5 years in the White House doing mostly policy work, as she said. This is what Mr. Klain, an experienced lawyer who has been around Washington a long time, said about her: Elena is clearly a legal progressive. I think Elena is someone who comes from the progressive side of the spectrum. She clerked for Judge Mikva, clerked for Justice Marshall, worked in the Clinton administration, worked in the Obama administration. I don't think there is any mystery to the fact that she is, as I said, more of the progressive mold than not. Let's just take a note there, when she graduated from law school she clerked for Judge Mikva. She is a very smart individual, a very liberal individual. I believe she clearly would be considered a judge of the activist variety. Then she clerked for Justice Marshall, a great, famous Justice on the U.S. Supreme Court but probably considered the most activist member ever to sit on the Supreme Court of the United States. That is whom she worked for. She took a leave, I think it was a leave from her teaching position, to come to the Senate to work on the Judiciary Committee to help confirm to the Supreme Court of the United States the chief counsel for the American Civil Liberties Union, Ruth Bader Ginsburg. That is the kind of judge she has admired and worked for. She made a speech in which she called Justice Barak of Israel, who has been called the most activist judge in the world, her judicial hero. I think the American people know the role of a judge. They know a judge is not empowered to legislate. They know a judge is not empowered to set policy. They know a judge is not empowered to redefine the meaning of words in the Constitution or some statute to make it say what they would like it to say in a given case that is before them. They know that is an abuse of power. It is a violation of oath, and the American people care about it. When I talk to people, when I am in townhall meetings, people invariably ask about activist judges who are legislating from the bench. They know it is against the American view of law because these judges are unaccountable to the public. They have a lifetime appointment. They cannot be removed if you disagree with their approach. So for them to advance an ideological, philosophical social agenda from the bench frustrates democracy in a very real way, and the American people understand it. I do not think the American people are going to hold harmless those who vote to impose a legal progressive activist legislator from the bench upon them. So I am asking my colleagues to look at this nomination carefully. Do not be a rubberstamp for the President. I am talking primarily to my Democratic colleagues now. It is your vote. It is your responsibility to make sure your constituents do not wake next year, next year, next year, and find some judge redefining the Constitution to make it say something it was never intended to say. So do not be a lemming. Review this nomination. Be careful about it because I am afraid we have a dangerous, progressive, political-type nominee who is going to be before us. So I would call on my Democratic leadership in the Senate, let's be sure we have a good time for debate, let's not curtail it. I call on all my colleagues to come to the floor and express their views, but, most important, to ask themselves, is this nominee the kind of nominee you who will serve on the Federal bench for the next 30, 40 years who will subordinate herself and serve ``under the Constitution and laws of the United States'' as that oath says or will she feel she is just a little bit above it, and has a right to advance a social agenda or some other broader vision for what America should be that somehow Congress did not see fit to enact, the people's branch did not see fit to enact, so she should just do it anyway because Congress did not act. We should act. That is not a justification for judicial activism. When Congress does not act, it does not act. That is a decision not to act. Courts are not empowered to set about to fix all that if they are not happy with it. We are heading into an important period for the Congress, for the Senate. We will be looking at this nomination. The nominee was a skillful and articulate one and had a good sense of humor and handled herself in many ways well. But I think, as you hear from a number of people who studied her testimony, that it had a bit too much spin and not enough law, not enough clarity, not enough intellectual honesty to meet the high standards we should look for in a Supreme Court nominee. We ought to be looking for the best of the best, a lawyer's lawyer, not a political lawyer, a lawyer's lawyer or a proven judge. The fact that she is not a judge is not disqualifying. But I would expect, if you are not a judge, you ought to be proven as a lawyer in the real world of law practice. This nominee simply is not. She is a political lawyer, and I do not believe she should be elevated to the Supreme Court of the United States. I yield the floor and I suggest the absence of a quorum.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask unanimous consent that I be allowed to speak as in morning business. The PRESIDING OFFICER (Mr. Kaufman.) Without objection, it is so ordered. Kagan Nomination

Mr. SESSIONS. Mr. President, I wish to speak on a very serious issue relating to the confirmation of Solicitor General Elena Kagan for the Supreme Court of the United States. As I was preparing for her hearings, I noted what struck me as a disturbing decision she had made as Solicitor General shortly after taking that position, in a case called Witt v. Department of the Air Force. In that case, a former member of an Air Force Reserve unit in Washington State sued the government to challenge the ``don't ask, don't tell'' law, which essentially says openly homosexual persons may not serve in the U.S. military. The case was dismissed by the district court, and the military was allowed to proceed with its policy. But when it was appealed to the Ninth Circuit, that very liberal court of appeals overturned the district court and said the case should go to trial and announced an unworkable legal test that the lower court must apply and that the government would have to meet for the ``don't ask, don't tell'' statute to survive constitutional challenge. After that unprecedented ruling, the Solicitor General's Office, then manned by the Bush administration personnel, immediately authorized an appeal to the full Ninth Circuit, en banc, and the government asked the full court to take a look at it and overturn the three-judge panel. The full court of appeals declined to do so, over strong objections from several judges on the Ninth Circuit who thought their colleagues had clearly gotten the case wrong. In fact, the First Circuit in the Northeast had already reached a different conclusion in a very similar case, and had upheld the statute. At that point, the government could have appealed the Ninth Circuit decision to the Supreme Court, as I think the Solicitor General's Office clearly was on track to do. First, they sought en banc review, and then they would seek interlocutory appeal to the Supreme Court. But as it happened, by the time the case was ripe for appeal, the Obama administration had come into office and Ms. Kagan had become Solicitor General. She was now head of the office that makes this decision on whether to take cases to the courts of appeals or, if necessary, to the Supreme Court; the office that is charged with the great responsibility of defending before the Supreme Court the statutes passed by the United States Congress. Of course, don't ask, don't tell is a congressional statute, not a policy of the military. So it fell to her to decide whether to take the case to the Supreme Court. She refused. I practiced law for 20 years--15 as part of the Department of Justice, as a U.S. attorney for 12 years--and I think I can make some commonsense evaluation of the judgments the lawyers made in this litigation. Ms. Kagan, at the time she made this decision, had only been Solicitor General--had only served in the Department of Justice-- for 6 weeks or so. As I analyzed what I think happened, I asked some serious questions about why this Solicitor General failed to follow through on what appeared to be the direction of her predecessor. And I was struck by the distinct possibility that Ms. Kagan did not fulfill this fundamental responsibility of her office, which is to defend the statutes of the United States regardless of her personal policy views. So at the time of her confirmation hearing, just a couple of weeks ago, I asked her about this case and the facts that led up to it. I asked her to explain the decision, and I deliberately intended to give her time to explain it. Well, she took time, using notes for about the only time I saw in the hearing, and talked uninterrupted for about 10 minutes to explain how it was that she made the decision. At the end of it, I thanked her for her answer and noted that I was going to have to review this because what she had done did not make good sense to me. I have to make a judgment. I am a Senator. I have to know whether the person who is being considered to sit on the highest Court of the land with a lifetime appointment--could serve 30, maybe 40 years on the Court--whether they understand that officeholders have duties and responsibilities that they cannot just fail to discharge, that they must do? So I have conducted an examination, and I must say I am very troubled by what I have found about this case. I think the record shows that Ms. Kagan did not, in fact, fulfill her responsibilities in a good way and in a faithful way as Solicitor General and that she, in effect, violated a specific promise she made to the Judiciary Committee when she testified under oath during the hearing on her nomination a year or so ago to be Solicitor General. She had to be confirmed then and came before the committee. Before I go further, I wish to provide some background. It is widely known by many that Ms. Kagan is personally opposed to don't ask, don't tell. She has been opposed to it for some time. While she was dean at Harvard, she blocked the military recruiters from the campus career services office because of her opposition to don't ask, don't tell. She called don't ask, don't tell ``a moral injustice of the first order.'' She spoke at a protest of students who protested while a military recruiter was in the next building, and she changed the Harvard policy from admitting recruiters to the career services office to denying them admittance, without legal authority, contrary to the law Congress passed and on which I worked, to force universities to treat our military men and women who come to recruit on their campus with the same dignity and respect as they would treat anyone else from some law firm who makes millions of dollars. At the recent hearing she openly admitted to me that her views remain the same about this statute. When she came before the committee for the position of Solicitor General, she was specifically asked about this in written questions, in light of her strong opposition to this law. Congress passed three or four versions of the Solomon Amendment to finally require that colleges and universities treat our military on an equal basis, and some were forced to do so or lose Federal funding. She was specifically asked, in light of her strong opposition to this law, whether she would be able to defend it as the job of Solicitor General would require. This was not a mystery. We knew this matter was coming up through the courts of appeals and would be coming before the Solicitor General. She was flatly asked: If you are going to take this job, as you have been opposed to this statute, will you defend it as you are lawfully required to do? Only the Solicitor General can represent the U.S. in the Supreme Court. If the Solicitor General does not defend an act of Congress, who will? There is no one else. So it was a good question. She promised the committee under oath that she would, and she said that her ``role as Solicitor General would be to advance not my own views but the interests of the United States.'' Correctly stated. She went on to say that she was fully convinced that she could ``represent all these interests with vigor, even when they conflict with my own opinions.'' She said her general approach to suits challenging a Federal law would be to make any ``reasonable arguments that could be made in its defense,'' and this would include ``challenges to the statute involving the don't ask, don't tell policy.'' A pretty specific promise. It was an important promise. I am sure had she not made that promise, even more people would not have voted for her confirmation. She went on to say that she would ``apply the usual strong presumption of constitutionality to that law as reinforced by the doctrine of judicial deference to legislation involving military matters.'' As I mentioned earlier, it just so happened that immediately after she was confirmed it fell her lot to defend this very statute that she personally strongly opposed but that she had promised she would vigorously defend. She was given the opportunity to appeal to the Supreme Court from that terrible decision out of the Ninth Circuit, which refused to uphold don't ask, don't tell, and which ordered the military to go to trial in the middle of a war to justify the law under a newly-invented legal standard. Faced with that choice, Ms. Kagan refused to appeal, decided to let the Ninth Circuit decision stand, and allowed this case to be sent back down to go through a trial. Clearly, to me, the military's interest was to have the issue decided as a matter of law--that this is a lawful policy and that they were empowered to carry it out in a lawful manner. When I asked Ms. Kagan at her Supreme Court hearings recently why she blocked the Supreme Court review of the Witt case, she gave three reasons in her long answer. Some may have thought she gave a brilliant dissertation. She had notes, and she went through a long discussion. First, she said she concluded, after conferring with her colleagues, that it would be better to wait to appeal to the Supreme Court until after the trial, because a trial would build a better factual record of the case. She said once the facts were better developed, 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 the Supreme Court just how invasive and ``strange'' were the demands of the Ninth Circuit that were being placed on the government in defense of the law. I will say one thing: The Ninth Circuit demands were, indeed, strange and were utterly unworkable, as I will show. Third, she said an appeal in the Witt case would have been ``interlocutory;'' that is, an appeal before the case had come to an end and before a final judgment had been rendered in the case. The Supreme Court prefers not to hear these kinds of appeals. None of these explanations are credible. It is true that appellate courts, including the Supreme Court, prefer to hear appeals at the end of the case rather than in the middle, but that is a decision the Court can make for itself. It is not something the Solicitor General has to decide on the Court's behalf. And that consideration was clearly outweighed in this case. I will note parenthetically that when the Third Circuit ruled on the Solomon Amendment, which required Harvard and other law schools to allow the military equal access to recruit on campus, they took that as an interlocutory appeal and reversed the Third Circuit. That is exactly what should have been done here. The government had asked for an interlocutory appeal to the Supreme Court from the Third Circuit ruling that affected Harvard, and the Supreme Court agreed. It was a legal question, ripe for decision, and they decided the case. That is what should have happened. Here we already had a split among the courts of appeals on this question. The First Circuit had already ruled as a matter of law for the government. The Ninth Circuit ruling squarely conflicted with the First Circuit, and it was also at odds with decisions from four other circuits on similar principles. Here we also had an opinion from the Ninth Circuit that presented clean questions of law--an opinion that had dramatically altered the legal landscape in 40 percent of the United States, because the Ninth Circuit encompasses 40 percent of the United States, and that was proposing to subject the military to an invasive trial process, while fighting a war, to defend the application of a nationwide military policy to an individual person. Ms. Kagan's second explanation--that letting the case go to trial would allow the government to show just how painful a trial would be-- cannot be given serious consideration. The Ninth Circuit opinion was very clear about what the government would have to show in order for the don't ask, don't tell law to survive this lawsuit. In other words, one didn't have to go through all these steps at the lower court and show how dramatically disruptive it would be. The Court had set forth explicitly what would happen. It is easy to show the Supreme Court why this is not a workable approach. 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--not justify the law in general but to justify its application to this specific plaintiff--to prove that this specific plaintiff was going to harm the military if she were allowed to remain in the Air Force. It was also clear that such a trial was going to be disruptive to the military and that it would harm the unit cohesion Congress had set out to protect when it passed the don't ask, don't tell law in 1994. I am not alone in reaching this conclusion. Her predecessors in the Department of Justice and in the Solicitor General's Office, the office she took over, also knew the court orders did not make sense. That is why they immediately asked the full Ninth Circuit to reconsider en banc the three-judge panel's ruling when it first came down in 2008. They said in their brief that the Ninth Circuit decision ``creates an inter-circuit split.'' That means the First Circuit had held differently. The Ninth Circuit held a different way. We had a split of circuits which is something the Supreme Court considers when they decide to take a case. They went on to say it created ``a conflict with Supreme Court precedent, and an unworkable rule that cannot be implemented without disrupting the military.'' The Ninth Circuit's 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.'' They went on to say that immediate review was ``needed now to prevent this unprecedented and disruptive process.'' That is exactly correct. The lawyers who made that argument were clearly correct. Most importantly, Ms. Kagan's decision to send this case back for trial and not appeal doesn't make any sense because she knew a trial was going to be massively disruptive to the military. I have studied the record of the case on remand to the district court, and I have seen what has been going on since it was sent back to be tried on an individual plaintiff basis. The lawyers for the government are struggling to defend the law under these difficult circumstances. From the very first hearing before the district court, these lawyers, career lawyers, professionals in the Department of Justice, are asking the court not to allow discovery, not to allow the plaintiff to depose the soldiers and plow through all these issues in the military unit. Here is what the career attorney for the Department of Justice said at the first hearing before the district judge after the case went back down for this trial: If we commence with discovery into the specific facts of this case by looking at what unit members think, we are threatening--we are jeopardizing the unit morale and cohesion . . . that the Ninth Circuit said the government--the military--has an important government interest in. So the military is in a bit of a catch-22. By proceeding to discovery, we may well have to sacrifice our important government interest. Remember, Ms. Kagan told the Judiciary Committee--she told us just a few weeks ago--that ``building a factual record'' would be good for the government's case. Remember? I just went through that. That is what she said--it would be good. We would have a better prospect on appeal somehow. Here, the career lawyers trying to defend the military are saying that building a factual record is bad for the government because the discovery process will threaten the military's interest in unit cohesion. As a matter of fact, I will say as an aside that I think it is quite clear that if the Ninth Circuit theory of law were to be upheld, the ``don't ask, don't tell'' policy would be put in the situation where it would be difficult, if not impossible, to enforce because everybody dismissed under that policy would then be able to have a big trial. It could go on, as this one has, for months, and they would be able to call all the unit members to ask their opinion about what they thought about this, that, and the other, even about their personal sexual activities, perhaps. This is not a practical solution. It is bad for the government. How Ms. Kagan could now say it would be good for the case, I do not know. So clearly the career lawyer is right. The plaintiff in this case, who is represented by lawyers from the ACLU, has asked for and received access to the personnel records of the plaintiff's military unit. So now the ACLU has the personnel records of the entire unit, it appears. They have demanded depositions with 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. The district court has wrongly, I believe--well, I will just say it this way: The district court has allowed it at every turn because the district court says this is the only way to answer the questions the Ninth Circuit ordered them to answer before a person could be dismissed under this provision of law. But this is not just a case of bad--astonishingly bad--legal judgment. I do not think Ms. Kagan accidentally sent her client, the U.S. Air Force, into a litigator's lion's den. I do not think it was an accident. I believe she understood this was going to happen and, for some reason, she wanted it to happen. In the very first hearing the district judge held after Ms. Kagan refused to appeal to the Supreme Court and the case was sent back for trial, the plaintiff's lawyers argued they needed to get all this discovery in the case, and they made a very interesting statement to the district judge. They said this: [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; but we never heard any specifics as to why, and it boils down to they don't like the Ninth Circuit's decision. So apparently back in April 2009, Ms. Kagan acknowledged what I think is indisputable: that discovery of this kind, where soldiers are deposed and asked about their personal views and activities, would be disruptive to the military and bad for her client, the Air Force. That is just undisputable. She was the Solicitor General then and acknowledged that. Her decision to block an appeal to the Supreme Court was finalized in May of 2009. So before she made that decision, it does appear Ms. Kagan met with the opposing counsel in the case--the ACLU lawyers--and told them that ``discovery is a big problem.'' In other words, she told these ACLU lawyers for the other side, who were trying to attack the military policy, that developing a factual record in this case would be bad for the government. But she told us at the committee that she thought it was going to be good for the government. She knew in April of 2009 that a trial would be harmful to the interests of her client, but she made sure the case went back for a trial anyway. She knew that discovery would be harmful to the government's interests, but she told the Judiciary Committee, just 2 weeks ago, under oath, that she decided not to allow an appeal to the Supreme Court because she thought ``it would be better to go to the Supreme Court with a fuller record'' that would be developed at trial. I do not know how to reconcile her testimony with the record in the case. I do not think it can be reconciled. During this nomination process, I have expressed my concern about Ms. Kagan's record as a political lawyer--someone who has advanced a specific agenda as an adviser in the White House and someone who says she was ``channeling'' the Justice she clerked for on the Supreme Court when she encouraged him not to hear certain cases because she did not think a majority of the Court would rule the way she and her boss would like. But I do think this big decision she made as Solicitor General is, in many ways, more concrete proof--and from just a few months ago-- of the reason for our concerns that this nominee will have difficulties, and maybe find it impossible, to set aside her political views and decide cases objectively and fairly. Faced with the hard task and the solemn responsibility of defending the laws of the United States--after having promised the Judiciary Committee under oath that she would be able to uphold that responsibility, even as to this specific law she personally opposes--I am forced to conclude that Ms. Kagan did not live up to that promise and did not fulfill a solemn duty of the Solicitor General of the United States. This is not a statute, in my view, that is likely to be overturned by the Supreme Court. In fact, we know the law's opponents, in another case, did not want to see their case be appealed to the Supreme Court. Why? They felt they would lose, in my opinion. Let me talk about duty. Maybe that is a bit old-fashioned today. But Ms. Kagan should not have had to make a promise before the committee that she would defend this law. It is a duty of every Solicitor General to defend the laws of the United States, whether they like them or not, whether they think it is a good idea or not. Who cares what they think? They have a responsibility. They are confirmed to a position high in the Department of Justice--the position that empowers her to appear before the Supreme Court and state the position of the United States. Indeed, the Solicitor General's job has often been called the greatest lawyer job in the world. Why? Because the Solicitor General has the honor to stand before those Justices and say: I represent the United States of America. What greater honor can someone have than that, to represent this great Nation before the Nation's highest Court? Much is expected of them. So I say she did not have to make a promise to defend this statute. It was her duty, whether she liked it or not. And it does appear--I do not see how we can draw any other conclusion--that she did not like this law and that her strategy in the case was to not get a definitive Supreme Court ruling on the constitutionality of the statute and to allow these proceedings to be dragged out in lower court and to maybe influence Congress as to whether it repeals this act. I do not know. Certainly, she despised this law. She opposed it. She wrote briefs at Harvard attacking the Solomon amendment that said that Harvard Law School had to give the military equal treatment on campus and that access could not be denied simply because she did not agree with don't ask, don't tell, which is what she was doing at Harvard. The result of her decision showed she was willing to allow the ACLU to prowl through the our airmen and soldiers in units throughout the Ninth Circuit--covering over 40 percent of America--turning those units upside down, harming the discipline and order of those units and damaging to the military. I do not see how it can be considered otherwise. I think it was an abdication of her duty. We are Senators here. We are elected. We have one vote. And I know our nominee was articulate and had good humor and many thought she did very well with her testimony. I was not so impressed. But I do believe you have to fulfill your duty and your responsibility, particularly after you have explicitly promised to do so with regard to this specific case, and defend the law even when it runs contrary to one's own personal views. What if the person is now confirmed to the bench for 30, 35 years? If she were to serve as long as the judge she is replacing, I think she would serve 38 years on the Supreme Court. We have to know before they are launched forth on the Court that the nominee has the ability and the character and the integrity to defend the legal system in a proper and effective way. This nomination is further complicated by the fact that our nominee has no experience in the real practice of law. Our nominee has never tried a case, never stood before a jury, to my knowledge, never cross- examined a witness in a trial. She never had to deal with a judge who is not feeling good, maybe irritable one day, or dealing with lawyers on the other side who are clever and tough. That is something you learn. She has never been a judge. Well, they say, that is not necessary; some great judges haven't been judges. Of course, that is true, but she has never been a judge or a real lawyer. That bothers me. Then when I see the kinds of things I am seeing here, it makes me pause, frankly. I hope all of my colleagues will look at this and take it seriously. There are other examples of positions taken by this nominee as Solicitor General and at Harvard that are very troubling. I think the evidence shows a lack of a clear understanding of the importance of the rule of law in our country. President Obama has said he wants judges with empathy. I don't know what he means by empathy. That is not a legal standard. It is something other than law. It is more akin to politics or bias than law. He has said he wants a nominee who will demonstrate that they, in the course of their duties, will have a broader vision for what America should be. Does that mean a judge gets to manipulate the meanings of words in statutes and in our Constitution to promote this vision that they have? Were they elected to promote any vision? I don't think so. I think a judge should be a neutral umpire who puts on that robe to evidence a commitment to impartiality and call the facts of the case as they see them, faithfully following the law and faithfully finding the facts of the case. That is what a judge is all about. I am very concerned that our nominee, whose background has been more political. Her testimony to me was too much akin to White House spin than to a clear and intellectually honest explanation of what the law and facts are in complicated situations. I didn't feel good about it. Maybe others did, but I did not. So those are concerns I have. I hope my colleagues will specifically look at the don't ask, don't tell matter. I think it raises questions about whether the nominee should be confirmed. I yield the floor and note the absence of a quorum.

Mr. SESSIONS

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