Executive Session
Floor Speech
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Ms. CANTWELL. Mr. President, it is with great pride that I express my strong support for the nomination of Solicitor General Elena Kagan to be the next Associate Justice of the United States Supreme Court. A trailblazer in many ways, Solicitor Kagan was the first female to serve as Solicitor General of the United States and the first female Dean of Harvard Law School, one of the most prestigious legal educational institutions in our Nation. Her nomination as Solicitor General garnered the bipartisan support of every Solicitor General who served from 1985 to 2009, including Charles Fried, Ken Starr, Drew Days, Walter Dellinger, Seth Waxman, Ted Olson, Paul Clement, and Greg Garre, a testament to her ability to build bridges across partisan lines and her fidelity to law above politics.
Solicitor Kagan brings a wealth of historic legal experience to the position of Associate Justice, including serving as law clerk to Justice Thurgood Marshall, the first African-American to serve on the Supreme Court, working as an associate at the law firm of Williams & Connolly, teaching as a law professor at the University of Chicago and Harvard University, and acting as policy counsel to President Clinton and special counsel to the Senate Judiciary Committee. In these capacities she handled legal and policy issues ranging from public health, to education, to war crimes, to campaign finance and welfare.
Solicitor Kagan's experience with different branches of government equips her with a unique perspective on the law and the challenges the Court will face in the coming years. Her confirmation honors the legacy of Justice John Paul Stevens, the outgoing Justice, who was well known for his service of dignity and intellect, without regard for partisan divides.
If we confirm her--and I am confident we will--Solicitor Kagan will be only the fourth woman in history to serve on the Supreme Court, and will be the third woman to sit on the current Court, the highest number of female justices to serve at one time.
Solicitor Kagan's confirmation will be an inspiration for generations of female lawyers and legal scholars to come, and will make an indelible impression on this country's legal landscape. Today, women comprise only 19.2 percent of federal district court judgeships, and 20 percent of federal appellate judgeships, highlighting the need for increased gender representation on our Nation's highest courts. Solicitor Kagan's confirmation is only a step towards reducing this gender disparity in our Nation's judiciary.
I followed closely Solicitor Kagan's hearings, and I am impressed by Solicitor Kagan's commitment to respect the rule of law. The hearings for Solicitor Kagan, who testified for more than 17 hours and answered over 540 questions, were thorough and fair. In her opening statement, Solicitor Kagan observed that, ``the Supreme Court's role in our society is to act as a safeguard to the rule of law by maintaining a commitment to impartiality, principle, and restraint; and the role of a Supreme Court justice is to approach each case with even-handedness and fair-mindedness, to ensure that everyone who comes before the Court receives a fair shake.''
Solicitor Kagan also expressed her admiration for Justice Thurgood Marshal; under whom she clerked, for his view of the Supreme Court as a means of access to justice for those left without redress after unfair treatment. Her expressed judicial philosophy of impartiality and fairness, to individuals of all classes, income levels, and interests, is a critical component to the High Court in a climate where we see increasing judicial activeness and partiality to special interests.
Solicitor Kagan's experiences as a scholar and policy advisor unquestionably qualify her for a position on the Supreme Court. I find it disingenuous that several of my conservative colleagues have attacked Solicitor Kagan's lack of judicial experience. The last two of the previous four chief justices of the Supreme Court, William Rehnquist and Earl Warren, had no judicial experience when first nominated to the Court. Nor did, Felix Frankfurter, Louis Brandeis, and John Marshall, known as the ``Great Chief Justice.'' Over one-third of the past 111 Supreme Court justices had no judicial experience when they were first nominated. Rather than being a product of the judicial monastery, Solicitor Kagan brings a real world perspective on the role of a justice, with a view to the practical contexts and implications of the Court's decisions. Solicitor Kagan's two decades of experience working in every branch of government exceptionally qualify her as an Associate Justice, and as one of the top legal thinkers in the country.
My conservative colleagues have also criticized Solicitor Kagan's enforcement of Harvard Law School's anti-discrimination policy. Solicitor Kagan did not assert her own personal agenda and oppose military recruitment on campus, as several of my colleagues have alleged. Instead, as Dean, Kagan was charged with enforcing an anti-discrimination policy in effect at Harvard since 1979 that prevented organizations discriminating against selected individuals from recruiting through the school's office of career services. Kagan's enforcement of this policy was consistent with her predecessors, Dean Robert Clark and Harvard President Larry Summers. However, Kagan ensured that military recruiters still had access to students. Kagan noted, ``[M]ilitary recruiters had access to Harvard students every single day I was dean . . . I'm confident that the military had access to our students and our students had access to the military throughout my entire deanship.'' Solicitor Kagan's work to ensure student access demonstrates her support of our military and her encouragement of the brightest students' involvement in our Armed Services.
Solicitor's Kagan's widespread support is a testament to her impact on not only her colleagues and peers, but also upon a large number of those in the legal profession. The American Bar Association, after conducting an investigation over several weeks that included peer reviews, concluded that Solicitor Kagan merited its highest rating of unanimously ``well qualified.'' To merit the Committee's rating of ``well qualified,'' a Supreme Court nominee must be a preeminent member of the legal profession, have outstanding legal ability and exceptional breadth of experience, and meet the very highest standards of integrity, professional competence, and judicial temperament.
In addition, Solicitor Kagan has received support from Democrats and Republicans and a range of civil rights, non-profit, and advocacy organizations, including the National Women's Law Center, the National Partnership for Women and Families, Earthjustice, the American Bar Association, the Alliance for Justice, the National Association for the Advancement of Colored People (NAACP) Legal Defense and Education Fund, the National Association of Women Judges, the Hispanic Bar Association, the Service Employees International Union (SEIU), and the Leadership Conference on Civil and Human Rights (LCCR). Solicitor Kagan is also endorsed by her colleagues in academia, and a group of over sixty-nine law school deans across the country expressed their written support for her nomination to the Senate Judiciary Committee in a June 15, 2010 letter. Her supporters also include her former students, including one, a former law clerk to Justice Antonin Scalia, who called Solicitor Kagan, ``a person of utmost integrity, extraordinary legal talent and relentless generosity.''
Solicitor Kagan's intellectual aptitude and commitment to justice was demonstrated early in her life. She was born in New York City, NY, the daughter of a school teacher and a public housing lawyer. She graduated from Princeton University, received a Masters in Philosophy from Worcestor College of Oxford University, and received her law degree magna cum laude from Harvard Law School. She then clerked for Justice Thurgood Marshall, was an associate with Williams & Connolly, and then counsel to President Clinton, as Associate Counsel, Deputy Assistant to the President for Domestic Policy, and Deputy Director for the Domestic Policy Counsel. She led the Clinton administration's inter-agency effort to analyze all legal and regulatory aspects of the Attorney General's tobacco settlement and then participated actively in the development and congressional consideration of tobacco legislation. She also handled legislative issues involving constitutional issues, including separation of powers, governmental privileges, freedom of expression, and church-state relations.
As Dean of Harvard Law School, she joined other deans in opposing an amendment to strip the courts of the power to review detention practices, treatment and adjudications of guilt and punishment for detainees at Guantanamo Bay, Cuba. This reflects a fair view, with an eye to checks and balances on different branches of government.
In her first case as Solicitor General, Solicitor Kagan argued before the Supreme Court on behalf of the government in the Citizens United v. FEC case. As Solicitor Kagan notes, however, her role as Solicitor General was to argue on behalf of the country, not to advance her personal beliefs.
In my meeting with her, Solicitor Kagan confirmed her commitment to protecting the right to privacy enshrined in our Constitution. I believe she will preserve that right.
Solicitor Kagan is uniquely qualified to serve as Associate Justice because she not only possesses an impressive intellectual capacity and commitment to fairness, but also because she is committed equal justice. As she remarked in her opening statement, ``Equal Justice under the Law. It means that everyone who comes before the Court--regardless of wealth or power or station--receives the same process and the same protections . . .''
Solicitor Kagan demonstrates a readiness to serve on our Nation's Highest Court and I am confident that she will make a fine justice who will not only uphold the Constitution and legal precedent of the country, but continue to preserve one of the most treasured tenets of our legal system, equal access to justice for all Americans.
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