Executive Session

Floor Speech

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Ms. COLLINS. Mr. President, I rise today to discuss the nomination of Elena Kagan to be an Associate Justice of the U.S. Supreme Court. The responsibilities of a Supreme Court Justice are weighty indeed. It is his or her task to interpret the Constitution, to protect our cherished rights, and to enforce the laws passed by Congress.

Justices entrusted with lifetime appointments also must avoid the temptation to usurp the legislative authority of the Congress or the executive authority of the President. As Chief Justice John Marshall famously wrote in the 1803 decision, Marbury v. Madison, the Court must ``say what the law is.'' That is, after all, the appropriate role of the judiciary. For a judge to do more would undermine the constitutional foundation of the separate branches of government.

Given this backdrop, disputes regarding the scope of the Senate's power of advice and consent are not uncommon, nor unexpected whenever a President puts forward a Supreme Court nominee for our consideration. More than 215 years after the Senate rejected President George Washington's nomination of John Rutledge to serve on the Supreme Court, Senators continue to grapple with the criteria to use to evaluate Supreme Court nominees and the degree of deference to accord the President.

The Constitution, after all, pronounces no specific qualifications for Supreme Court Justices. It does not require that a Justice possess judicial experience nor even be an attorney. The absence of such requirements in the Constitution allows the Court to be comprised of people from different backgrounds, but in carrying out our advice and consent role, the Senate must ensure that judicial nominees have qualities befitting the post.

Senators must examine each nominee's competence and expertise in the law, judicial temperament, and integrity as demonstrated throughout his or her professional career. Determining a nominee's fitness to serve a lifetime appointment to the Nation's highest Court is one of the most critical and consequential responsibilities any Senator faces.

In considering judicial nominees, I carefully weigh their qualifications, competence, professional integrity, judicial temperament, and philosophy. I believe it is also critical for nominees to have a judicial philosophy that is devoid of prejudgment, partisanship, and preference. Only then will the decisions handed down from the bench be impartial and consistent with legal precedents and the constitutional foundations of our democratic system.

I have applied these standards to Elena Kagan. Having analyzed her record, questioned her personally, and reviewed the Judiciary Committee's hearings, I have concluded that Ms. Kagan should be confirmed to our Nation's highest Court.

The American Bar Association's Standing Committee on the Federal Judiciary has unanimously rated Ms. Kagan as ``well qualified.'' Ms. Kagan's remarkable legal and academic career demonstrates amply her intellectual capacity to serve on the Court. Her writings, testimony, and my discussions with her all demonstrate not only a sweeping knowledge of the law, but also a love for the law, a passion for judicial reasoning.

Ms. Kagan reflected the judicial temperament and philosophy I am seeking in nominees when she said during her testimony, ``I will listen hard to every party before the court and to each of my colleagues. .....And I will do my best to consider every case impartially, modestly, with commitment to principle and in accordance with law.''

In writing in support of Ms. Kagan, former court of appeals nominee Miguel Estrada said the following:

Elena possesses a formidable intellect, an exemplary temperament and a rare ability to disagree with others without being disagreeable. She is calm under fire and mature and deliberate in her judgments. Elena would also bring to the Court a wealth of experience at the highest levels of our government and of academia. If such a person who has demonstrated great intellect, high accomplishments and an upright life, is not easily confirmable, I fear we will have reached a point where no capable person will readily accept a nomination for judicial service.

As many of my colleagues will recall, Mr. Estrada's own nomination to the U.S. Court of Appeals for the District of Columbia was the first appellate court nomination in history to be successfully derailed by a filibuster, even though a majority of Senators, including myself, supported his nomination. That was truly unfair.

With that experience as a guide, I take Mr. Estrada's endorsement of Ms. Kagan to heart, and I agree that the Senate must put aside partisanship, must avoid political considerations, and must evaluate Court nominees with great care and with great fairness. We must not do to Ms. Kagan what, unfortunately, many Members on the other side of the aisle did to Mr. Estrada, despite his qualifications.

To be clear, in her previous posts, Ms. Kagan has taken positions with which I disagree. It appears that her personal opinion on gun rights is at odds with my own. But, nevertheless, Ms. Kagan indicated in her testimony before the Judiciary Committee that she would follow the precedent established in the Heller and the McDonald cases, describing those decisions as settled law. These cases clearly establish that the right to bear arms is an individual right guaranteed by the Constitution.

I believe Ms. Kagan will respect the precedent established in these two important cases. Ms. Kagan's responses on several issues indicate that she appears to understand and embrace judicial restraint and the limits of when courts should and should not intercede in matters.

She rightly deferred on several issues as policy questions more appropriately resolved by Congress and the executive. Based on my review of Ms. Kagan's record, my assessment of her character, and my belief in her promise to adhere to precedent, Ms. Kagan warrants confirmation to our Nation's highest Court. She possesses the intellect, experience, temperament, integrity, and philosophy to serve our country honorably as an Associate Justice of the U.S. Supreme Court.

I yield the floor.

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