Floor Statements

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I wish to speak about the Senate's processing of judicial nominations, and I ask you to forgive me if I am a bit irritable, but we have had a lot of complaints about how fast President Obama's nominations are going forward. I think they are moving rather well. I think some people who are now complaining have forgotten how they handled President Bush's nominees--and in a much more unacceptable fashion.

I wish to emphasize that all of this is not to lay the groundwork for some sort of payback, because I think we all ought to rise to the challenge of handling nominations properly, but to set the record straight, because there has been a lot of misinformation and some of our newer Senators don't know how things have happened.

Allegations of unprecedented obstruction and delay have been bandied about--some in the press also--but the reality is that the Democrats' systematic obstruction of judicial nominees during the Bush administration was unprecedented then and it is unmatched now. Soon after President Bush was elected, a group of well-known liberal professors--Laurence Tribe, Marsha Greenberger, and Cass Sunstein--met with the Democratic leadership in the Senate. The New York Times reported on that meeting. I believe it was in January, before the session began, and the Times reported that they proposed ``changing the ground rules'' of the confirmation process. They proposed that with a Republican President and Democrats in the Senate, Senators consider a nominee's ideology--their personal political views, I suppose, they meant. For the first time in the history of the country, they proposed that the burden be shifted to the nominee to prove they are worthy of the appointment instead of having the Senate respect the presumptive power of the President to make the nomination and then object if there was a disagreement.

As time went on, it became clear that a majority of the Democratic Members of the Senate began to execute their unprecedented obstruction

plan, targeting President Bush's circuit court nominees while moving district court nominees to mask the obstruction. After Democrats took control of the Senate in 2001, the Senate confirmed only 6 of President Bush's 25 circuit court nominations that year. Two of the six were prior Clinton nominees that President Bush had renominated as an act of good faith. They weren't his nominations. He renominated them and they promptly confirmed them--two of the six.

The majority of President Bush's first nominees--nominated on May 9, 2001--waited years for confirmation. Let me list some of the names: Priscilla Owen, who was then on the Supreme Court of Texas--a brilliant jurist--was confirmed but only after 4 years, on May 25, 2005. These were in that first group. Now Chief Justice John Roberts--a fabulous nominee; probably--not probably, he was the premier appellate lawyer in America--was nominated to the DC Circuit. He was confirmed, but only after 2 years and after undergoing two Judiciary Committee hearings. He eventually was confirmed by a voice vote.

Jeffrey Sutton, another superb lawyer with great skill in the appellate courts, was confirmed but only 2 years later.

Deborah Cook, for the Sixth Circuit, was confirmed 2 years later on May 5, 2003.

Dennis Shedd was confirmed more than a year and a half later.

Michael McConnell, for the 10th Circuit, was confirmed more than a year and a half later but also by voice vote--he was delayed that long for no reason.

Terrence Boyle waited almost 8 years until his nomination was allowed to lapse at the end of President Bush's Presidency. He was never confirmed.

Perhaps the most disturbing story was that of Miguel Estrada, whose name was raised during the Supreme Court nomination of Justice Kagan. He was an outstanding, highly qualified nominee who was nominated on May 9, 2001, just like the others, right after President Bush took office. He waited 16 months just for a hearing in the Judiciary Committee, only to be confronted with demands that the Department of Justice turn over internal legal memoranda that had never been turned over before. They used that for 2\1/2\ years, leaving him in limbo, and then had a protracted 6-month filibuster. I think it was the first overt, direct filibuster of a highly qualified nominee the Senate had seen. This was one of the ground rule changes that occurred. There were seven cloture votes on Miguel Estrada, seven attempts by the Republicans to produce an up-or-down vote on the floor of the Senate on Miguel Estrada. It went on for weeks. I participated in that. I probably spoke on his behalf more than any other Senator. Eventually, Mr. Estrada withdrew his name from consideration. He had a private law practice to deal with. He could not continue this.

I remain baffled today as to why such a fine nominee was treated so poorly, his character assassinated, and his nomination was ultimately blocked for no reason. The record that they claim needed to be produced from the Department of Justice was, by every former living Solicitor General--they said those are internal lawyer-client documents that should not have been produced. It was a sad day. I hope the Senate has learned from that unfortunate event.

One of the most blatant examples of obstruction of Bush nominees occurred in the Fourth Circuit. This court sat one-third vacant. One- third of the judges had retired, and it was vacant. They needed judges. I did not hear any of my Democratic colleagues worrying then about vacancies and caseloads when they were deliberately delaying and blocking outstanding, well-qualified nominees to that court, including Federal District Court Chief Judge Robert Conrad, Judge Glen Conrad, Mr. Steve Matthews, and Mr. Rod Rosenstein. They deliberately blocked these nominees to keep those vacancies open so that a Democratic President would perhaps have the opportunity to fill them.

That actually turned out to be a success, from their perspective. A 2007 Washington Post editorial at the time lamented the dire straits of the Fourth Circuit at the time, writing:

[T]he Senate should act in good faith to fill vacancies--

not as a favor to the president but out of respect for the

residents, businesses, defendants and victims of crimes in

the region the Fourth Circuit covers. Two nominees--Mr.

Conrad and Mr. Steve A. Matthews--should receive confirmation

hearings as soon as possible.

But they did not.

He was the chief presiding trial judge in a district court, a Federal district court. He was nominated to the seat for which President Obama's nominee, Judge James Wynn, was confirmed on August 5 of this year. They held that seat open for 8 years. Since the President has been in office, he nominated someone else, and he got his nominee confirmed by this Senate.

Chief Judge Conrad had the support of his home State Senators and received an ABA rating of unanimously ``well qualified,'' the highest rating you can get. He met Chairman Leahy's standard for a noncontroversial, consensus nominee. He previously received bipartisan approval by the Judiciary Committee and was unanimously approved by the Senate to be U.S. attorney and later to be district court judge for the Western District of North Carolina. Of all the lawyers in the country, Attorney General Reno, when he was a Federal prosecutor, reached out to him and picked him to preside over the investigation of one of the campaign finance task force cases that implicated, perhaps, President Clinton, the President of the United States. He did that investigation professionally. He returned no indictments against the President or his top people. He was respected on both sides of the aisle. Yet he was flatly blocked, although representing the highest quality.

On October 2, 2007, home State Senators Burr and Dole sent a letter to Senator Leahy requesting a hearing--at least a hearing on Judge Conrad. They also spoke on his behalf at a press conference on June 19 that featured a number of Judge Conrad's friends and colleagues who traveled all the way from North Carolina to show their support. The request for a hearing was denied.

On April 15, 2008, Senators Burr, Dole, Graham, and DeMint sent a letter to Senator Leahy asking for a hearing on Judge Conrad and Mr. Matthews. That request was denied.

Despite overwhelming support and exceptional qualifications, Judge Conrad waited 585 days for a hearing that never came. His nomination was returned to the President on January 2, 2009. That was a horrible event, in my view. The Senate failed in its duty. Judge Conrad was a powerful, bipartisan nominee with great credentials and served Attorney General Reno and the Democratic President and should have been confirmed.

Another of President Bush's outstanding nominees was Judge Glen Conrad. He also had the support of his home State Senators, including Democratic Senator Jim Webb of Virginia, and received an ABA rating of ``well qualified,'' the highest rating. He, too, met Chairman Leahy's standard because he had already been confirmed to the District Court for the Western District of Virginia by a unanimous vote--89 to nothing.

Despite his extensive qualifications, Judge Conrad, who was nominated on May 8, 2008, waited 240 days for a hearing--just a hearing in the committee--that never came. His nomination was returned to the President in 2009, as President Bush left office. In stark contrast, President Obama's nominee to this seat, Judge Barbara Milano Keenan, received a hearing a mere 23 days after her nomination and a committee vote just 22 days later, and she was confirmed at the beginning of this year--a slot that should have been filled by Mr. Conrad.

President Bush nominated Steve Matthews in 2007 to the same seat on the Fourth Circuit to which Judge Diaz has now been nominated. Mr. Matthews had the support of his home State Senators and received an ABA rating of ``qualified.'' He was a graduate of Yale Law School and had a distinguished career in private practice in South Carolina.

Despite these qualifications, he waited 485 days for a hearing that never came. His nomination was returned to the President as he was leaving office.

That does not seem to slow down my Democratic colleagues who have forgotten all this, I guess, and their allies in the press from unabashedly complaining that Judge Diaz had been

waiting too long for this seat, for a confirmation vote, or decrying the need to rush to fill the vacancy--a vacancy that just has to be filled right now.

The truth is that the vacancy should never have existed if Mr. Matthews had been confirmed when he was supposed to have been confirmed.

Earlier this year, we confirmed Judge Andre Davis to the ``Maryland'' seat on the Fourth Circuit. A brief history of that bears mention. President Bush nominated Rod Rosenstein to fill that vacancy in 2007. The ABA rated him unanimously ``well qualified,'' the highest rating. Previously, he had been confirmed unanimously as the U.S. attorney for Maryland. Prior to that, he held several positions in the Department of Justice under both Republican and Democratic administrations.

Despite these stellar qualifications, Mr. Rosenstein waited 414 days for a hearing--just a hearing in the Judiciary Committee, which the Democrats never gave him. His nomination was returned to the President on January 2, 2009.

The reason given by the home State Senators for why his nomination was blocked was that he was ``doing [too] good [of a] job as U.S. Attorney in Maryland.'' I think the Washington Post editorial painted a more accurate picture, saying:

Blocking Mr. Rosenstein's confirmation hearing . . . would

elevate ideology and ego above substance and merit, and it

would unfairly penalize a man who people on both sides of

this question agree is well qualified for a judgeship.

But it was only when President Obama nominated Judge Davis to this seat that we heard our Democratic colleagues express outrage over the fact that it had been vacant for 9 years. I said that was like the man who complained about being an orphan after having murdered his parents. Ironically, however, Judge Davis fared far better than President Bush's nominees to the Fourth Circuit. He received a hearing a mere 27 days after being nominated. A committee vote occurred 36 days later, and he has been confirmed.

Suffice it to say that the Democrats have capitalized on their 8 years of obstruction of outstanding, well-qualified Bush nominees by packing the Fourth Circuit Court of Appeals with Obama-picked nominees.

I want to say, parenthetically, President Bush did an excellent job of picking high-quality judicial nominees. Consistently, they sought out highly competent men and women of integrity and ability to appoint to the courts, people who had this fundamental belief--that some on the other side do not like--that a judge should follow the law, should be a neutral umpire, and should not take sides and ought not to be an activist and ought not to promote their personal agenda when they get a chance to rule and define the words of statutes and the Constitution. There is a fundamental difference. I will talk about that later. I may not get to that today, but I am going to talk about it some more. It is a big deal, what you think the role of a judge is. Should they be an activist? Should they promote greater vision, as President Obama said, of what America should be? Is that what we want judges to do? Classically, in America, judges are empowered to do one thing: to decide the discrete case before them objectively, impartially, under the laws and Constitution of the United States.

The Democratic Senators perpetrated similar systematic obstruction in the Sixth Circuit. I hate to say it. I hate to talk about it. I sound like I am being a partisan person over here, complaining. I am just reading the record.

In November of 2001, President Bush nominated Judges David McKeague, Susan Neilson, and Henry Saad to fill vacancies on that court. In June of 2002, he nominated Richard Griffin to fill an additional Sixth Circuit vacancy.

Mr. President, I see my time is up. I don't see anyone on the floor. I ask unanimous consent that I be able to proceed.

Mr. President, I will yield the floor if and when my colleagues seek it.

But the Democratic home State Senators refused to return their blue slips for any of these nominees for the Sixth Circuit. President Bush renominated all four on January 2003. This time the Democratic home State Senators returned their blue slips--negative blue slips, opposing all four nominees.

Despite this, on July 30, 2003, 629 days after the initial nomination and 204 days after his renomination, the Republican-controlled Judiciary Committee--Republicans had just taken control--held a hearing on Judge Saad's nomination.

However, Democrats continued to delay the nomination for a year, until he was finally and favorably reported out of committee on a party-line vote. But it did not matter. The Democrats filibustered his nomination on the floor, and he never received an up-or-down vote in the Senate. He was filibustered, which was a changing of the ground rules. We had not filibustered judges before in the Senate. All this occurred after 2001.

President Bush renominated Judge Saad in February 2005, but the Senate failed to act on his nomination, and he was never confirmed. Judges Griffin and McKeague eventually received hearings on June 16, 2004, 721 days after Judge Griffin had been nominated, and 951 days after Judge McKeague's original nomination. They were both reported favorably out of committee a month later, but the Democrats filibustered them on the floor, and their nominations were returned to the President.

Both were renominated in the 109th Congress and were finally and overwhelmingly confirmed, Judge Griffin by a vote of 95 to 0 and Judge McKeague by a vote of 96 to 0.

As these votes show, the nominations were not controversial. They were just being held up. Yet they still waited over 1,000 days for their confirmation. Judge Susan Nielson received a hearing on September 8, 2004, over 1,000 days after her original nomination and over 600 days after her renomination. Although her nomination was reported favorably out of committee on October 4, 2004, Democrats refused to give her an up-or-down vote in the full Senate, and her nomination was returned to the President.

He renominated her in 2005, and 7 months later the Democratic home State Senators finally returned positive blue slips, after delaying the nomination for this long. She was easily confirmed 97 to zip, 1,449 days after her original nomination. Unfortunately, Judge Nielson passed away shortly thereafter.

On June 28, 2006, President Bush nominated Stephen Murphy and Raymond Kethledge to fill still more vacancies on the Sixth Circuit. However, the Democratic home State Senators withheld their blue slips, and the nominations were returned to the President. The President renominated them in March of 2007. After almost a year of delay, as part of a compromise, President Bush agreed to withdraw Mr. Murphy's nomination and to nominate Judge Helene White in his place. In exchange, home State Senators finally returned positive blue slips for Mr. Kethledge.

There is a story behind this. Why was there so much needless obstruction in the Sixth Circuit? One reason, it appears, was that the NAACP National Defense League made a personal request to Democratic Senators on the Judiciary Committee that they stall the confirmation of nominees to the Sixth Circuit until cases regarding the constitutionality of affirmative action in higher education were decided. They believed, apparently, that if Bush appointees were confirmed to that circuit, the outcome of the cases would not be to their liking. They were afraid President Bush's judges would be committed to color-blind policies.

So this is just one example of a larger agenda. Our Democratic colleagues criticized, during the Kagan confirmation hearings, Chief Justice Roberts' metaphor that a judge should act like a neutral umpire in a ball game, calling balls and strikes and applying the law to the facts.

No, they seem to want judges who will make policy and rule based on their personal policy preferences and political beliefs to advance desired outcomes.

Well, what is activism? Is this an exaggeration? I think we need to be frank that there are activist judges--and you can be a conservative activist or a liberal activist, but there is a difference in the sense that liberal judges and law

professors and commentators advocate judges being activists.

Chief Justice Roberts and Justice Alito were articulate spokesmen for the classical American view that a judge should be a neutral umpire and should be impartial and should decide the cases and not try to make law or advance a vision for America.

Many judges, however, are overriding the will of the people this very day. It is becoming apparent that many on the left hold the Federal judiciary as an engine to advance the agenda of the left, picking and choosing which constitutional rights they will protect and which ones they will cast aside. The only consistent principle--of which sometimes I think, and I am exaggerating, but I sometimes think--is to advance the agenda of the leftwing of the Democratic Party. That is about the only consistent guiding principle you can find in some of these opinions.

Just a few months ago, the preservation of the explicit constitutional right to keep and bear arms was upheld by a single vote on the Supreme Court. Four Justices, including Justice Sotomayor, contrary to, I think, what she said just 1 year earlier in her confirmation hearing, would have held that the right to keep and bear arms is different from other liberties protected by the Bill of Rights and should not apply to the States.

Hugely significant. If that were to be so, any State, any city or county, for that matter, could ban firearms altogether because the constitutional right to keep and bear arms would not apply to them. Four Justices on the Supreme Court ruled that way.

During the last term, the free speech clause of the first amendment barely escaped being rewritten by a single vote in Citizens United. In that case, the Supreme Court invalidated a portion of the McCain- Feingold campaign finance law, holding that political speech is not exempted from the first amendment guarantee of free speech merely because the speaker's expression is funded, in part, by money from a corporation, a group of Americans.

Four Justices on the Supreme Court would have rewritten the free speech clause to allow the government to ban statements made by such groups in an election cycle. I mean, the last thing we need to be doing is whacking away at the great liberties in free speech clause of the first amendment.

Just a couple years ago, one vote on the Supreme Court decided that a city could use its eminent domain power to take property, to take a woman's house, in order to give it to a private company for a redevelopment project, not for public use. So much for the constitutional guarantee of life, liberty and property and the constitutional guarantee that your property can only be taken for public use, not private use. You cannot take somebody's property because you would like to take it to give to somebody else who would use it in a way that the city thinks is better, maybe spend more money on it so they can get more tax revenue.

By one vote, the Supreme Court held it did not violate the first amendment for a public university to require a religiously oriented student organization to accept officers and members who do not subscribe to the organization's religious beliefs. How could they say that?

Recently, a judge in the Western District of Wisconsin, the same district to which Louis Butler has been nominated, held that the statute establishing the National Day of Prayer was unconstitutional because its sole purpose ``is to encourage all citizens to engage in prayer.''

In so doing, the judge held that the government had ``taken sides on a matter that must be left to individual conscience.'' Well, nobody is being made to pray. You do not have to bow your head if someone has a prayer, for heaven's sake.

One wonders, then, does this Senate violate the establishment clause each day when we open the session with a prayer, most often led by a paid Chaplain, former head of the entire Chaplain Corps of the United States Military?

There is a constitutional guarantee to the right of free exercise of one's religion, the free exercise clause, not found in the first amendment of the judge's constitution.

I will repeat, if other Senators would desire to speak, I will yield the floor.

The liberal Ninth Circuit, to which Professor Goodwin Liu has been nominated, held recently that the recitation of the Pledge of Allegiance in an elementary school was unconstitutional under the establishment clause of the first amendment because the pledge includes the words ``under God,'' and amounted to a government endorsement of a religion.

One wonders what the Ninth Circuit would have to say about teaching children the Declaration of Independence. After all, it does say: ``We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights.'' Is that now unconstitutional, to read the Declaration of Independence?

A single judge on the U.S. district court in Massachusetts recently invalidated the congressionally passed Defense of Marriage Act that passed on this floor. I remember the debate about it. The judge found it unconstitutional. Basically, what he said is: No State would have to give full faith and credit to a marriage in another State if it does not meet their definition of marriage as between a man and a woman.

The judge, in great wisdom, not having had to run for office, with a lifetime appointment, unaccountable to the public in any way, objected, found it to be unconstitutional because it did not have ``a legitimate government interest'' and was outside the scope of ``legislative bounds.''

Well, I remember the debate on that. People quoted the Constitution, and we discussed it at great length. I cannot imagine how that can be held to be unconstitutional.

A single judge in the Northern District of California, the same court to which Edward Chen has been nominated, held that a statewide ballot initiative defining marriage--this was a California initiative, statewide, that defined marriage as between a man and a woman, which was passed by a majority of California voters--violated the due process and equal protection clauses of the fourteenth amendment.

The judge decided, essentially by fiat, that the State, the people of California, had no legitimate interest in defining marriage.

Marriage has always been a matter of State law. A single judge in the central district of California recently held Congress's don't ask, don't tell policy was unconstitutional. This is the policy on gays in the military. The judge in the central district of California held that this policy was unconstitutional because it did not ``significantly further the government's interest in military readiness or unit cohesion.'' It was an impermissible content-based restriction that violated free speech, free association, and the petition clauses of the first amendment.

I don't think this judge has any responsibility for or knowledge about readiness and unit cohesion in the military. It is a matter Congress appropriately has dealt with, will have the opportunity to deal with again, and may well do so, although we did not move forward yesterday.

This is not a matter for the courts. The American people know this. They sense activism in their courts, and they are concerned and unhappy because these judges, once they declare something to be constitutional, or find something in the Constitution, it is as if an entire amendment was passed, and it becomes impossible for a city or county, a State or congressional action to overturn it.

These are big issues we have been talking about for some time. I do have my back up a little bit about being accused of obstructing, when nominees are moving along at a very good pace today, in my opinion. A few are controversial, and I could talk about them, but I see Senator Kerry in the Chamber now.

I believe when we get all the facts out, people will remember that many of the changes in the process occurred as a deliberate plan by the Democratic leadership in 2001.

I yield the floor.

Mr. President, this is a policy of the President of the United States. He determined to change the policy that has been in effect for quite a number of years, and by all accounts has been working very well. All four service chiefs favor keeping that policy. He selected Admiral Mullen. He selected Secretary Gates, who has not been an enthusiastic supporter of this change, frankly. He has gone along with the Commander in Chief who appointed him. He has indicated that we ought to have a study first--made a commitment, really, to our men and women in uniform that there would be a study first, and we are not running an objective study.

So Admiral Mullen did testify he personally believed this was a change that ought to be made. But the Army Chief of Staff, General Casey; the Chief of Naval Operations, Admiral Roughead; Air Force Chief of Staff Schwartz; the Commandant of the Marine Corps, General Conway; and now General Amos--who just testified this morning will be replacing General Conway--oppose it and believe we owe it at least to the men and women in uniform to study the impact this might have. I just believe it is not necessary to ram this through this fast before we complete a study. I oppose that.

We had reports of a general--he has denied how he was quoted in the Washington Times, General Bostick, in Europe, who made statements that upset a very large group of people--he is a personnel general, three stars--about how everybody had to go along with this agenda, be on board with it, and suggested, according to the article, you would not be able to stay in the military if you were not endorsing this proposal. He said it was the equivalent of civil rights and you were being a bigot if you somehow had a different view.

I just think that is dangerous. To say this is not going to have a corrosive impact on the men and women in the military is a mistake. I think it is being raised up in importance and being raised up in the potential to damage the military by the fact that it is being rammed through before a fair and objective review of the policy is conducted.

I believe that firmly. If this is going to be changed it ought to be done respectfully, carefully, not moved through right now on this bill because of fear that the study will not be positive and it will not be able to be passed next year, maybe after the American people have sent some new Senators to this Senate. Maybe then it will not be so popular and have so much support.

I am frustrated that I would have to vote against moving to the Defense authorization bill. Last year was the first time I did that because attached to the bill was an unrelated, controversial hate crimes piece of legislation. I voted for bills that had other stuff in it I didn't agree with, but I try to be supportive. But I will not, and I urge my colleagues not to allow the Defense bill to be a train that carries through controversial, unpopular pieces of legislation. It is just not the right thing for us to do, and we are going at it again this year.

We have had a tradition of bipartisan support of Defense bills. I guess the first 12 years I was here we have always had massive bipartisan support, and I have signed them. This action is overriding that tradition. It is not helpful.

I will just note, as the ranking Republican on the Judiciary Committee, I am very disappointed that the majority leader has made clear that one of the amendments he is going to approve for us to vote on would be the controversial, unpopular DREAM Act that has not had a hearing--at least in years that I can recall--in the Judiciary Committee where it should be--to give amnesty to people who came into our country illegally.

I urge my colleagues to vote against moving to this bill until it is cleaned up and does not have this controversial legislation on it.

I yield the floor.

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

Mr. President, I would like to share some thoughts about the surprising decisions that were noted in some of the media that the majority leader, certainly with the support of the administration, plans to introduce a very significant, very controversial, unacceptable amnesty amendment to the Defense authorization bill. The proposal is called the DREAM Act.

A lot of people think this is legislation that we need to deal with, and some have supported it over the years. It has been coming up for quite a number of years and never passed. So what do we have now? We have a scheme to bring it up, not having had it go through the committee process. The bill was introduced March 2009. I assume that is what Majority Leader Reid plans to bring up, but we have not been given the amendment language. So they have got this DREAM Act proposal. They want to add it to the Defense bill, and put it on a bill that is so important they think the Congress will pass it anyway. Pass it as part of the Defense bill. We are weighing down the Defense bill--I am on the Armed Services and Judiciary Committees where both of these matters have come up. They want to weigh down this armed services bill with controversial legislation that ought not to be on it, to jeopardize it and put us in a position where a lot of good people who otherwise want to support the bill will not be able to do so, No. 1.

No. 2, let's talk about the DREAM Act. The American people have every right to be unhappy with this Congress. They have every right to be unhappy with the President of the United States. This Congress and this President have not shown any inclination to end the massive lawlessness that is occurring at our borders. We have learned

that. We went through this debate several years ago. I was engaged in it deeply, spent a lot of time and effort on it, and the message the American people sent to us, when they shut down the switchboards in this Senate by so many phone calls, was border security first. We have got to end the lawlessness. So when you take a policy that says you are going to reward people who have entered our country illegally with a guaranteed pathway to citizenship, and with billions of dollars in financial aid or benefits they would not otherwise be entitled to, what message are we sending? We are sending a message, as we have too often sent year after year after year, that we are not committed to a lawful process of immigration in our country.

Let me say, a lot of people some years ago thought that we could never get to a legal system of immigration. And we can. We have made some progress. We have built a fence--not all that was supposed to be built, but the fencing has helped. We have done some things that have helped, but we are not there yet. I believe there is a national consensus out there--polling data shows it. My conversation with my people in my State and around the country in airports and so forth indicates that what we have to do is end the massive illegality and then we can begin to talk about people who have been in our country a long time. I am not saying that is something that should never be talked about and dealt with. But in 1986, this country said, well, we have got a lot of people here illegally. What we have got to do is to make them all legalized and that will end the problem, see. Everybody will be legal then. We do not have a real problem anymore. We promise we will enforce the law in the future.

Well, the amnesty took place immediately and the ending of illegality did not occur. In fact, illegality increased dramatically. Why? Because the message that went out, not the words that were said by politicians on the floor of the Senate, but the real message that went out around the world was, Americans do not care if you get in the country illegally and if you can stay there for a while, you are going to get amnesty too.

It is the same people today who are making the same argument. It cannot sustain scrutiny. It cannot sustain any critical analysis. It will not work. It is a failed policy.

Look at the DREAM Act. It would eliminate the statute passed a little over 10 years ago in 1996 that said, if you are in the country illegally, you should not be given in-State tuition. A really big deal. Oh, it is mean spirited. If you are in the country illegally, I am not sure what you should be entitled to, but certainly not discounted tuition or Pell grants, or student loans.

The first thing you do when you want to end illegality on immigration policy is stop subsidizing it, for heaven's sake. Stop subsidizing it. What kind of mixed message is it when you have people in the country illegally and you give them special benefits, including Social Security and other benefits too?

They will be given a green card that has certain conditions. But, in fact, basically, I would say if you do not commit a felony, you are put on a guaranteed path to citizenship. Well, oh, you have to go to school or get a GED or be enrolled in a community college. What happens when you do these kind of things? I mean, there are people here who have nephews and nieces, children not in this country. They read that we passed such a bill as this. Why would they not think, well, I need to see if I can get my relatives in, my grandchild or whoever, in this country illegally.

They are not allowed to come in. Everybody else has to wait in line, maybe hire lawyers to make sure they can get their entry into the country legally. I will bring in my niece, my nephew, and they will qualify for this act in a few years. Why would that not increase the amount of people who would come into the country illegally? It certainly would do so. We have discussed these issues before.

This is a bogus policy. And after a few years, you are placed on a path to become a full citizen of the United States, ahead of millions of people who waited in line dutifully to get their citizenship. It is a reward for illegality. You can spin it any way you want to. We discussed this for years in this body. It will not stand scrutiny. It is not good policy.

I understand some of my colleagues are saying this is somehow relevant to the Defense bill, because there is an option to serve in the military for two years that will put you on a path to citizenship. Well, there are programs already for people who join the military to enhance their ability to get citizenship.

But this bill is plainly legislation that has been kicked around here for a decade, at least, and it has never been brought up as a Defense bill. It has always been brought up as an immigration bill, which it plainly is. So now to come in and try to say it is somehow connected because of this minute possibility, that 5 percent, probably at most, would demonstrate their educational advantage through the military is a stretch. I want to repeat: What is happening here? This administration, it has been reported, is having internal analyses done to determine how amnesty can be given without congressional action.

They have announced recently that people apprehended in our country illegally will not be deported unless they have committed a felony, presumably DUI or larceny, misdemeanor theft. So as long as you do not plead guilty to a drug felony, that will not lead to deportation.

That is the kind of action that eviscerates enforcement. We do not need to be having that kind of policy in our country. We had the spectacle, shortly after President Obama was elected, when a hard- working, honest ICE agent conducted a raid at a company in Bellingham, Washington and found a whole bunch of people there illegally working, and it caused an uproar.

Secretary Napolitano said, I am going to get to the bottom of it. Was she getting to the bottom of this company that hired a bunch of illegal aliens? No. She was going to get to the bottom of how it was that a law enforcement officer actually had the gumption or the initiative to go out and try to enforce the law in this country. They announced a policy based on campaign promises they had made during the campaign that they were not going to do that anymore. And, presumably, I am not aware of any that have been conducted since. They have people from immigration advocacy groups running to the administration in high concern--you promised us you would not enforce this kind of law.

What do the American people think about this? They are not happy. People should not be happy about it. We are a nation of laws. We need to end the lawlessness. I was a Federal prosecutor for 15 years. I know something about how this has played out, and I have looked at it closely over the last decade. It was not something I chose to be involved with. We almost had to raise a question and begin to examine it.

What I have discovered is, the potential is there, it is within our grasp, to be able to end this massive lawlessness and create a lawful system.

At that point, we will be able to involve the American people and then ask how should we treat people who might have come here young and have been here quite a number of years? How should they be treated? But to do anything that creates a guaranteed path to citizenship for people who are here illegally now will only undermine the progress we have made in enforcement in recent years. People can wish things were different. But in my analysis, we simply have to follow through on the law of the land, to end the lawlessness. We may need to pass legislation to help, and we will. But we also have to have the will of the Commander in Chief, the chief law enforcement officer, the President of the United States. We have to have the support of the majority leader of the Senate, the Speaker of the House, and the majority party in the Senate. They have to be committed to ending lawlessness. Are they or are they not? They will say they are. But I would say this DREAM Act gimmick, this manipulation to stick it on the Defense bill is a clear statement that they are not committed to it.

In fact, what they are committed to is a political plan to assuage some campaign promises made last time and to provide another method of legalizing those who have entered the country illegally. That is not right.

What are we going to do? Let's get busy. Let's end the lawlessness now.

We can do this in a few years. It is not going to break the bank. I have been there and looked at it and studied it. If we followed up on the gains we have made, we would make even more and be in a position to wrestle with these kinds of issues.

My concern is the following: First, it ought not to be on the Defense bill. It ought to come through in the regular order and in the light of day so people can have hearings and testimony, and citizens who are concerned about it on either side can have their view and their say. Secondly, we don't have the money. Estimates I have seen have indicated that this bill, amazingly, could cost the Treasury of the United States $19.2 billion just for the first 2 years. Where are we getting that money from? We are already in record deficits, having almost doubled the debt, and will triple the debt in 8 more years. We are going to add another $19 billion to subsidize illegal activity? In addition to that, Social Security entitlement benefits, welfare, Pell grants, student loans, all those would be added to the cost also.

Are there any funds to investigate whether someone is qualified? It may be that the average American hearing this debate says: These people came here at age 3. They should qualify for in-state tuition, even if they illegally came here. But those qualifications, coming here at that age, is not the requirement, first. No. 2, they only have to prove they have been in the country for 5 years. How do they prove it? They produce false documents. This is commonly done. How do they prove they came here at age 14, age 12? They may or may not have documents.

Do you think the FBI is going to take a document submitted to the immigration people to justify qualifications under the DREAM Act? Does anybody think the FBI is going to investigate to see if these are forged documents? Nobody is going to check this out; they don't have time. There is no money in the legislation to do so, no requirement that I can see to do so.

I know illegal immigration causes significant social and emotional problems throughout society. Some would say the way to remedy it is to not let anybody suffer any consequences as a result of violating the laws of the United States. Just don't enforce the laws. Reward the people who came in here illegally. Don't do anything about it.

Of course, on the surface that is untenable. But when you come up with a plan that simply says if you are in our country illegally, you don't qualify for in-state tuition, or you don't get subsidized student loans if you came into the country illegally, this is seen as harsh and mean spirited and should not occur. But great governments have to decide how they are going to conduct their business, and they have to decide whether we are going to end this lawlessness and have a lawful system of immigration.

This country, by the American people, has made up its mind. They have told the Congress what they want. But the arrogance, the total disrespect of the decent, honorable plea from the American people to end the lawlessness and create a system we can be proud of is surprising to me. I would think the Congress, after all we have been through, would have understood that the plea of the American people is not mean spirited. It is not unfair. It is quite legitimate and decent. We believe in immigration. We want immigrants to come to the country. We believe they should apply. We believe people who qualify should come here before people who do not qualify. That is what America is all about. That kind of legal system is one of the things that attracts people all over the world to come here. It should not be undermined.

If we do the right thing, we will reject this amendment. Hopefully, it will not even be brought up. Please, I hope it is not brought up. It is just going to cause a lot of frustration and tension on the Defense bill that ought to be focused on the men and women in harm's way and how to help them do their job better and more safely. I hope it does not come up. But if it does, it needs to be voted down. We need to tell the President, tell his Secretary of Homeland Security and his ICE department, tell Members of Congress we are tired of fooling around. Let's get busy and complete the job and create a lawful system of immigration of which we can be proud.

I yield the floor and suggest the absence of a quorum.

Mr. President, I rise today to discuss the significant threat prostate cancer poses to the male population in the United States.

The American Cancer Society estimates that more than 217,000 American men will learn that they have prostate cancer in 2010, and 32,000 American men will lose their lives to the disease this year, making prostate cancer the second most common cause of cancer death among men.

One out of every six American men will be diagnosed with prostate cancer, and an estimated one in 36 men will die from this disease.

African-American men experience a significantly higher incidence rate of prostate cancer than White males, and more than double the mortality rate.

This disease is also affecting young Americans. Thirty percent of those battling prostate cancer are under the age of 65, prime years of productivity for families and for this Nation.

Doctors across our country agree: early detection presents the best chance for a cure. However, this motto is more than good public policy for me.

As a 10 year prostate cancer survivor myself, I know the value of early detection and surgery, and it is painful for me to know that many good people in this great country are not being diagnosed early and are therefore greatly increasing their risk. The simple PSA blood test can be the key to detection. Millions have taken advantage of it, but unfortunately millions do not. We must do better.

Approximately 98 percent of men diagnosed with early stage prostate cancer are still alive after 10 years, but only 18 percent of those diagnosed with advanced stage prostate cancer survive 10 years.

Increasing awareness of prostate cancer is particularly important to my home State of Alabama. Although we have world class medical research facilities at the University of Alabama at Birmingham and excellent doctors across the State, 3,300 men in Alabama will develop prostate cancer in 2010, and 600 deaths in our State will be attributed to prostate cancer this year.

In May 2006, Alabama was one of 5 States to receive a failing grade in regards to its ``prostate cancer awareness'' by the National Prostate Cancer Coalition. A 2006 CDC study found that 38 out of 100,000 Alabama men die from prostate cancer, ranking Alabama 47th in the US.

Every year since 2002, I have introduced a resolution to increase awareness about prostate cancer and to encourage men to talk with their doctors about this disease.

I am pleased to partner with ZERO: The Project to End Prostate Cancer in promoting this year's resolution and other activities throughout the month of September to increase public knowledge about prostate cancer including risk factors, prevention, and treatment options.

Last night the Senate passed S. Res. 597, a resolution to designate September 2010 as National Prostate Cancer Awareness Month. The purpose of this resolution is to bring attention to prostate cancer and encourage Americans to take an active role in the fight to end the devastating effects of prostate cancer on individuals and their families.

I am honored to be joined on this resolution with 28 cosponsors, including Senators Bayh, Bennett, Boxer, Burr, Burris, Cardin, Casey, Chambliss, Cochran, Crapo, Dodd, Dorgan, Feingold, Feinstein, Hatch, Inhofe, Inouye, Isakson, Johanns, Johnson, Kerry, Landrieu, Lugar, Schumer, Shelby, Specter, Tester, and Vitter.

I thank my Senate colleagues that have worked to increase prostate cancer awareness through this resolution, and I applaud the work of countless Americans who give up their time and energy to raise awareness of this disease and fight prostate cancer's impact on families and our Nation.

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

Mr. President, we wish to enter into a discussion this

afternoon about a very critical issue in this confirmation process, and that is the second amendment and the right to keep and bear arms as provided for in our Constitution; the threat that now exists to that right that is plainly stated in the Constitution, and why we think it is worthy of serious consideration.

I will say that most Americans are totally unaware, perhaps, that the second amendment and the power of the second amendment hangs by a mere thread. Two five-to-four decisions recently have affirmed the second amendment, but had that vote been different--one Justice voting a different way--the second amendment would not apply to the District of Columbia. It would not be considered a right that would apply even to a Federal Government entity such as the District of Columbia as a result of the Heller case.

A more recent case in Chicago, McDonald v. the City of Chicago, dealt with whether the second amendment actually applies to the States and does it only apply to the Federal Government. That was a big deal. If it does not apply to the States, then any State in any city--and many cities are perfectly willing to do this--would have the power to ban firearms entirely, even though the Constitution plainly says you have the right to keep and bear arms. This was the effect of that decision.

I see my colleague Senator Wicker from Mississippi here. I wish to ask him if he would share with us: Does he believe Ms. Kagan's record would provide us any insight into her views on the second amendment? Because she would be one of the votes that would be critical as we go forward in the future as to whether that amendment still has power and force.

If the Senator will yield, this is a troubling thing. Justice Scalia has been a fierce critic of this, pointing out: What country do you pick? Do judges get to pick their own?

It seems to me, from what the Senator said, it is clear that the President's nominee to our highest Court in the United States has felt that the world of international law is more important than studying our own Constitution.

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

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

It is a troubling statement. I think, clearly, it allows her to justify voting--if confirmed to the Supreme Court--to eviscerate the second amendment. There are some earlier cases before the 14th amendment was even passed, or before the first 10 amendments, the Bill of Rights, were applied to the States in any systematic way that you could rely on as precedent, which could indeed trump, in her words, the original intent of the Constitution.

What did the people ratify? They ratified the Constitution that, in fact, just before the Founders signed it, they said ``we do ordain and establish this Constitution for the United States''--not some other judicial opinion 100 years later.

I think it raises troubling questions about where she stands on that. In the light of Heller and McDonald, which were razor-thin 5-to-4 decisions, made within the last 2\1/2\ years, we have to acknowledge that the Supreme Court is not, with clarity, committed to the plain application of the second amendment.

Well, most nominees have not had a record on it, but it is interesting, and perhaps noteworthy, that President Obama, who himself has not been a strong supporter of the second amendment rights, and many of his supporters and Cabinet members are openly hostile to it, the two nominees for the Supreme Court he has submitted, Justice Sotomayor and Kagan, have had records that indicate a hostility to it. Even though Judge Sotomayor, in her testimony, indicated she considered this settled law--the Heller decision--her decision less than a year later in the Chicago McDonald case, on a similar but somewhat different issue, was not consistent with the belief that the Supreme Court had settled the question in Heller. So this was a troubling thing. I think the Attorney General of the United States, Eric Holder, has argued very vociferously to restrict gun rights.

This is the top law enforcement officer in the country. I do believe this is a matter of some concern, in fact, that we may be moving into a period in which the government, the big city in Washington, the elites who control this, who come out of an environment where they are not comfortable with guns, are oblivious and insensitive to the right that I believe was critical to our Founders in ratifying the Constitution. They wanted to know that they had a right to keep and bear arms, and it was important to them that the right was in the Constitution.

I ask Senator Thune, have any of the outside groups that are concerned about these issues spoken out about this nomination?

The McDonald case was a hugely important case. It dealt for the first time in recent memory with the question of whether the second amendment, which had been held in Heller to apply to the Federal Government, whether it passed through the 14th amendment to apply to all the States--and cities are creatures of States, so whether it applied to cities.

This is a big deal because it is not generally so much the Federal Government that is willing to deny gun rights, but certain States and certain cities seem very aggressively willing to deny people's second amendment rights.

The question for the Court was: Is it a fundamental right in the Bill of Rights, a stated fundamental right, and if it is fundamental, it passes through the 14th amendment and all States must comply with it, just as States must comply with the right to free speech and other rights in the Constitution.

By a razor thin 5-to-4 majority, the Supreme Court in McDonald held that it is a fundamental right and does apply to the States, and no State, therefore, and no city can deny an individual right of an American citizen to keep and bear arms. This is a big, important case.

Justice Sotomayor--who suggested otherwise in her testimony--as Senator Thune said, her record suggested she would rule that way, rule with the four that it did not apply to the States. It is a big deal.

The question becomes: Does it impact a fundamental

right? At some point it does. We decided you cannot put a poll tax on people to say you have to pay money for your right to vote. People do not have to pay for the right to speak out about advocate beliefs because you have a right to free speech.

I do think these restrictions, as they increase, can reach a point of denial of people's individual right to keep and bear arms. We want to be sure that a judge not only recognizes it is a constitutional individual right but that the judge recognizes that some of these restrictions we accept and are legitimate go too far.

I thank my colleagues for this nice and valuable discussion. I will say that one of the unjustifiable actions of the judicial activist philosophy that is too much afoot in America today is their willingness to completely be oblivious to plain constitutional rights, things that are flatly stated, and then to create rights that do not exist.

For example, the Constitution gives the right to free press, but we had Solicitor General Kagan arguing before the Supreme Court in defense of this campaign finance bill that a corporation could be prohibited from producing a pamphlet before an election that might be critical of a politician. I mean, that is what the first amendment was about. It wasn't about pornography or flag burning, for heaven's sake. It was about political speech, plainly in the Constitution. Yet we had four members of the Supreme Court--a vote in an opinion recently--who said the government could ban the pamphlets. Actually, another lawyer for the government argued you could ban books.

The Supreme Court, by a 5-to-4 majority did, in fact, say that you could take a man's private drugstore--the government could--and give it to another man who had a competing drugstore; in other words, taking private property for private use. The Constitution says you can't take private property except for public use under condemnation. A plain violation, 5-to-4 approved.

By two 5-to-4 decisions--the narrowest of margins--we had the plain constitutional right that Americans have to keep and bear arms hang by one vote. We have another example of a judge in California yesterday declaring that the Constitution somewhere says a State must declare that a union between same-sex couples has to be defined in the same way and recognized in the same way as a marriage, even after California had a referendum in which millions of Californians voted differently. A single judge, with no clear constitutional authority at all--in fact, no real constitutional authority--declared that invalid and wiped it out.

So I would suggest that people who are using this court to promote their agendas need to be careful. Don't think you can play with the first amendment. Don't think you can play with the second amendment. Don't think you can play with the constitutional right to have your property not taken by the government except for public use. If you can start wiping those rights out, what right next will the Court come and take? What right next will the central government come and take from you?

So if you love this Constitution and respect it and believe it is a great bulwark for freedom, prosperity, and liberty, I suggest there is only one way to handle it, Mr. President: enforce it as written whether you like it or not.

I thank the Chair, and I yield the floor.

Mr. President, in the midst of President Johnson's ``Great Society,'' Ronald Reagan explained that our Nation had arrived at a crossroads, at a time for choosing.

The choice, Reagan explained, was ``whether we believe in our capacity for self-government or whether we abandon the American Revolution and confess that a little intellectual elite in a far- distant capital can plan our lives for us better than we can plan it for ourselves.''

Forty years later, our Nation once again finds itself at a crossroads. Government is getting larger and larger. Spending is out of control, and a little intellectual elite, in a far distant capital, is trying harder than ever to plan the lives of the American people. Even basic choices about how we care for our own health are now made by career bureaucrats whose names Americans will never hear and whose faces they will never see.

Our Nation has a choice to make. We either restore or relinquish our great heritage of limited constitutional government. Part of that choice will be made here today. Part of that choice will be made as we consider the nomination of Elena Kagan to the Supreme Court. In recent years, the progressive wing of the Supreme Court has offered opinions that would have denied Americans their right to keep and bear arms, and severely diminish the right to free speech during election time.

These same progressive Justices succeeded only a short time ago in ruling that a citizen's property could be seized by the State for private commercial development. These Justices are ignoring the text of our Constitution, the plain rights guaranteed by our Constitution, in order to advance what

they think are better ideas, their vision, their political agendas, frankly.

This progressive, activist judicial philosophy strikes at the heart of our democracy and is a direct threat to our liberty. Judges are lifetime appointed. They are not accountable to the people. President Obama himself has said that judges must shed their neutral constitutional role and impose upon the nation ``their broader vision of what America should be.'' That is how he said he would pick judges, and this is certainly the kind of judge President Obama believes he has found in Ms. Kagan, someone who shares his progressive, elitist vision and is willing to advance it from the bench.

Indeed, throughout Ms. Kagan's career, she has been more deeply involved in politics than law, and has frequently put her politics above law. She has never been a judge, never argued even a case before a jury. She has practiced law for 3 years. She has less real legal experience than any nominee in the last half century.

The experience Ms. Kagan does have, however, is mostly that of a political lawyer and a policy advocate, and whenever her political views have clashed with her legal obligations, her vision of what America should be and not her duty have too often won the day.

As a Supreme Court clerk she pursued a progressive agenda without regard to the Constitution's text or history. She even wrote she was not sympathetic to an American's constitutional right to keep and bear arms. As a top aide to President Clinton she was closely involved in efforts to restrict private gun ownership, including a plan to block firearm importation into our country that one Clinton official admitted was ``taking the law and bending it as far as we can.''

She also worked aggressively to ensure the wide availability of partial-birth abortion. Instead of providing President Clinton with sound legal advice based on the best medical evidence, she pushed the President away from his moderate position, and away from his willingness to reach a compromise on this issue. She even helped revise a medical statement to imply a medical need for the gruesome partial- birth abortion procedure that did not exist, when the expert panel had indeed said it was never an appropriate procedure.

Next, as dean of Harvard Law, Ms. Kagan would once again sacrifice legal principle for political gain for advancement of an agenda she believed in. Ms. Kagan inherited a policy of equal and unfettered access for military recruiters on campus. That was the policy. But she reversed this policy, kicking the military out of the campus recruitment office as our troops at that very time were risking their lives overseas. She did this in clear, knowing violation of Federal law, the Solomon amendment. The Solomon amendment, passed by this Congress four times, requires unrestricted, equal access on campuses for military recruiters. Ms. Kagan knew what the law said, and as she herself admitted, knew that it was in force every single day she was dean. But she put her own views, her political ideas, her ideologies above the law and above the best interests of our soldiers, stripping the military of their official access availability on campus.

Ms. Kagan justified this conduct by saying she was objecting to don't ask, don't tell. That statute, however, was passed by Congress and implemented by President Clinton, her former boss. But instead of complaining to the politicians who made the rule, to those of us in Congress who were involved in passing it and maintaining it, working within the democratic system, Ms. Kagan took it upon herself to defy the law and to demean the people who were merely following the law, our noble men and women who serve our country.

Perhaps some of those on that campus recruiting had just come off the battlefield, having served their country, placing their lives at risk. For that there can be no justification.

After Harvard, Ms. Kagan assumed the post of Solicitor General of the United States. In that job it is her sworn duty to defend all Federal laws, including those she may personally oppose. These are the laws of Congress which the Solicitor General must defend. As every good lawyer knows, her job is to represent her clients, and the client of the Solicitor General is the United States of America.

Did she fulfill that duty? Did she faithfully represent her client? No, she did not. When the liberal Ninth Circuit issued a deeply flawed ruling against don't ask, don't tell, the law Ms. Kagan had so strongly opposed at Harvard, she did not appeal the ruling, despite great chances of success on appeal to the Supreme Court. Instead, she did exactly what the ACLU, the group who was leading the fight in representing the individual in that lawsuit, who opposed the statute and wanted it stricken, she did what they desired and let the ruling stand, and missed the opportunity to get a clear appeal. This was a test of Ms. Kagan's legal character, and she failed that test. I studied the case closely. I want to be fair to her about that.

The only explanation for her not appealing to the Supreme Court was that she did not want them to uphold the statute to win a victory for the United States. In short, she did not fulfill her duty. Her duty. Is that a word that is out of fashion today? And she did not live up to her explicit, sworn promise made to this Senate, to vigorously defend that very statute, when she was confirmed to be Solicitor General.

Given this record, it is not surprising that Ms. Kagan's judicial heroes are activists who reject and repudiate sometimes even the very idea of objectivity. But it is objectivity, the search for what is right and true, that makes our system of justice so extraordinary and so unique. The whole goal of our trials is to find the truth. These concerns were addressed during the hearing. Ms. Kagan was given every opportunity to respond. But she opted, I thought, for political spin at the expense of rigorous honesty and accuracy. In so doing, she only further demonstrated she lacked the qualities necessary to sit on the Court. Other Senators have the same impression of that testimony.

Some have said that Senators are opposing this nomination for partisan reasons, that her qualifications are not in question. But what qualification is more essential for the Supreme Court than impartial fidelity to the law? This is not an ideological litmus test but a core bipartisan standard to which any nominee of any party ought to be held.

Senators can and will disagree on the question of how much deference a President is due in his nomination. But surely that deference cannot extend so far as to include a nominee who is unable to serve under the Constitution as they take an oath to do.

The American people will not easily forgive the Senate if we confirm Ms. Kagan to the Supreme Court. They will not forgive the Senate if we further expose our Constitution to revision and rewrite by judicial fiat, to advance what President Obama says is a broader vision of what America should be. That is the Congressional role, not the judicial role, to figure out what the vision and the policy of this country should be.

Now more than ever we need this Court to be an impartial defender of our constitutional liberty. As Vice President Biden's own chief of staff and close friend of Ms. Kagan emphatically said, ``Ms. Kagan is clearly a legal progressive.'' If confirmed, I fear she will continue putting her politics above the law, as she has so often done before. So I invited those who supported this nomination to refute the record and the analysis I have stated over the several past weeks, but I do not think one error has been raised and identified by Ms. Kagan's supporters in what I have said.

So we are left with the same concern, that Ms. Kagan would ally herself not with the constitutional liberties of all Americans but with the big government agenda of the President who nominated her. In fact, at the hearing, Ms. Kagan was unable to identify any limits on the government's power to control America's economic decisions. What Ms. Kagan perhaps fails to realize is that the people should control their government, not the other way around.

That is why no Supreme Court Justice should simply rubberstamp any political agenda of a President or Congress, nor should any Senator. Our liberties are far more precious than any partisan allegiance.

After the Constitution was drafted, Benjamin Franklin was asked what kind of government had been created. Franklin replied: A republic, if you can keep it. Again, the choice is ours. Either we embrace our great, magnificent

constitutional heritage that I love so much or we let it slip away to judges who believe they can allow their own personal core beliefs and philosophies to help them decide how a case should go. Either we move forward more secure in our freedom or we fall back to the old bankrupt idea of big government--an idea that has failed at every place, every time it has been tried.

Let's take a step today in the right direction. Let's listen to the American people and strengthen our commitment to constitutional values. It is that commitment that impels me to vote against this nomination and why I urge my colleagues in both parties to do the same.

I see the chairman of the committee, Senator Leahy. He and I don't agree on this nomination, but he is a proven professional chairman. He has gone through a host of these nominations. He is tough, but he is fair. He let us have our say. I thank the chairman for the privilege of working with him on this important constitutional effort.

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

Mr. President, I would like to express my appreciation to my staff who worked tirelessly during these past few months on this nomination. They spent many long hours combing through and distilling information in hundreds of thousands of documents provided by Solicitor General Kagan, the Clinton Library and the Pentagon. On a short timeline, my staff worked around the clock to prepare for the hearing before the Judiciary Committee, which occurred merely 49 days after President Obama announced Solicitor General Kagan's nomination to the Supreme Court. Because of their hard work and dedication, our members were well-prepared and well-informed, which allowed us to conduct a fair and thorough hearing.

Mr. President, I would like to thank my staff and Senator Leahy's staff, the Judiciary Committee staff, for their fine work during this nomination process. It has gone on for a number of weeks, and it has been very stressful, with a lot of late nights, and people really have worked hard. I believe that has provided us with good and accurate information.

I particularly would like to express my appreciation to my staff director, Brian Benczkowski, on whom I have relied repeatedly through this process, for his good judgment and wise counsel, his integrity and experience as we have dealt with this difficult challenge. I would also note my chief counsel for nominations, Danielle Cutrona, who has also worked exceedingly hard, as well as my deputy staff director, Matt Miner.

I would like to acknowledge and thank the other hard-working and talented lawyers on my permanent staff who worked on this nomination, including William Smith, Ted Lehman, Bill Hall, Mark Patton, John Ellis, and Kimberly Kilpatrick.

I would also like to extend my appreciation to the talented lawyers who joined my staff as Special Counsels specifically to work on this nomination, including Ralph Johnson, Jason Tompkins, and Susanna Dokupil. And I would be remiss if I did not mention the efforts of our Law Clerks, two of whom dedicated their time while studying for the bar exam, including Amanda Lavis, Ed Liva, and Taylor-Lee Wickersham.

I would also like to acknowledge our dedicated support staff: Lauren Pastarnack, Sarah Thompson, Andrew Bennion, Allison Busbee, Kate Laborde, and Ivy Williams.

Finally, I cannot overstate the important work done by our press team. My Communications Director Stephen Boyd, Press Secretaries Sarah Haley and Stephen Miller, and Press Assistant Andrew Logan have worked tirelessly throughout this process.

All of these individuals shouldered the brunt of this enormous task, working late hours and through weekends and holidays. They deserve our recognition for their hard work, professionalism, and dedication to public service.

I would also like to thank the other talented lawyers on my staff who, among others I have just mentioned, handled the regular legislative business that came before the Judiciary Committee during this process: Joe Matal, Bradley Hayes, and Sam Ramer.

And let me express my gratitude to the Republican Leader and his staff, specifically John Abegg, Josh Holmes, and Webber Steinhoff; along with Republican Policy Committee Counsel Gregg Nunziata who provided invaluable assistance to my staff.

I'd also like to express my thanks to Chairman Leahy for his work on this nomination. We didn't always agree on everything, but he was respectful of Republicans' rights during this process and he conducted a fair and thorough hearing. He would not have been able to do that without the help of his staff, including his Staff Director and Chief Counsel Bruce Cohen and his Chief Nominations Counsel Jeremy Paris.

Finally, I would like to thank the Judiciary Committee's Chief Clerk,

Roslyne Turner and her assistant, Erin O'Neill.

Every one of these talented staff members contributed to this process, and their dedication and hard work helped us conduct a fair and thorough hearing. I extend my heartfelt thanks to each of them. We could not have fulfilled our Constitutional duty of Advice and Consent without them.

Mr. President, there are in the hearing nine letters in opposition to the nomination of Elena Kagan to be Associate Justice of the Supreme Court from Gonzalo Vergara, Lt. Col., USAF (Ret); the Judicial Action Group; National Right to Life Committee; Military Families United; the Liberty Counsel; The Ethics & Religious Liberty Commission of the Southern Baptist Convention; the American Association of Christian Schools; the Center for Military Readiness; and the National Rifle Association of America.

I ask unanimous consent to have printed in the Record four letters from the National Right to Work Committee; the American Conservative Union; C. Everett Koop, former U.S. Surgeon General, and the Ethics & Religious Liberty Commission of the Southern Baptist Convention.

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

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

Mr. President, I appreciate Senator Schumer's legislation, and I also would support it. It is clearly a step in the right direction, and it is one of the things we need to do.

I guess as we leave this Congress to go home and get ready to campaign, many of my colleagues may be able to say they did something that was helpful in eliminating illegal immigration--something other than suing the State of Arizona, where the Department of Justice is trying to block Arizona from participating effectively in reducing the amount of illegal immigration.

On June 11, the National Immigration and Customs Enforcement Council, acting on behalf of approximately 7,000 ICE officers and employees-- Immigration and Custom Enforcement--cast a unanimous vote of ``no confidence'' in Mr. John Morton, the Director, saying that he is more interested in politics than in in enforcing our immigration laws. So I am concerned about that.

Also, Senator McCain was correct to say that we voted for 700 miles of double-layer fencing, and even appropriated money for its construction. Only 400 miles have been completed and of that, only about 40 miles are double layer. I am not aware that any other construction is ongoing. Why aren't we completing that? It multiplies dramatically the capability of an agent to be effective on a long border if there are barriers there. So I am not happy about our not completing that. It is very much a failure. This Congress committed to the American people more than one time to build that fence and we still have not done it.

This is typical of why the American people are not happy with us; why our approval rating is getting close to single digits. You can't get much lower than it is. After much debate, we agreed to build a 700-mile fence, yet we end up getting 400 and saying that is great.

Then we have this administration, immediately after taking office causing a big stir by investigating its own ICE agents. ICE agents raided a business in Washington State which was employing a whole bunch of illegal workers and do you know what Ms. Napolitano, the Secretary of Homeland Security says? She says: We are going to get to the bottom of it.

Did she mean we are going to get to the bottom of the people who were illegally working and the company who was illegally hiring them? No. She wanted to get to the bottom of what it was this agent was doing trying to enforce the law.

She sent a signal throughout the entire Federal law enforcement community. What was that signal? Don't raid businesses. That is exactly what that did.

Operation Streamline does work. It absolutely works. CNN had a guy on; he was caught within hours, Senator McCain. They took him down to the border and walked him to the middle of the bridge and let him go back, and he just came back the next day. So this Operation Streamline is really a dramatic improvement where it is in effect.

The 287(g) program ought to be expanded, which calls on and provides a mechanism for great partnership with local people. Instead, Secretary Napolitano narrowed the program and when the State of Arizona tries to help DHS, the Obama Administration say: No, that is not a good idea. We are going to sue you.

So, in my view, this bill is a good step. I salute my colleague from New York. I think we have some potential to work in the right direction. But there is a lot more to be done, and what is lacking is a firm commitment from this administration and this Congress to end the massive illegality at our border. It is within our grasp to do so. A lot of people think it is not possible--it is possible. We have done it on certain sectors of the border. We could complete that, and then we could begin to focus on what to do about the people who have been here for many years and how to handle that. But until we focus on ending the illegality, we can't get anywhere.

So I will be thankful for what we have. Senator McCain would like to add 3,000 more agents, but 1,200 is a step in the right direction. But a number of other things, if done effectively, with the will to reduce the illegality, will work. It is not impossible.

The thing about Operation Streamline, and the reason it saves money instead of costing money, is that when it is utilized, the number of people entering illegally goes down because they know they are not just going to be taken back to the border the next day and released to then reenter. They actually get a misdemeanor conviction and maybe some sort of probation, and then they are released and are much, much, much less likely to come back because it would be a more serious offense the second time.

I thank the Chair, and I yield the floor.

Mr. President, I rise today to discuss an important matter involving the future of the Tennessee Valley Authority.

As you may know, TVA is led by a Board of Directors that consists of nine individuals appointed by the President and confirmed by the Senate. These board members serve for staggered 5-year terms.

For some time, it has been understood that each State within TVA's service area should be represented on the board. This makes sense given TVA's diverse energy production and economic development activities, which affect communities in each State differently as do the Authority's various power plants and dams.

Recognizing this, President Bush, in 2006, nominated to the board a fabulous individual from my State, Howard Thrailkill. The Senate confirmed the nomination unanimously.

Mr. Thrailkill has undoubtedly served with distinction. He was president of AdTran, a successful technology company in Huntsville, and he brought to TVA a familiarity with the complexities of running a large organization.

Upon his confirmation, Mr. Thrailkill immersed himself in the financial records, business plans, and technical data surrounding TVA's many functions. He became an expert on the organization in a way that many board members do not. When he identified a poor performing project or a proposal with downsides, he was not afraid to say so. And he was especially familiar with TVA's activities in North Alabama, where he lived.

Undoubtedly, Mr. Thrailkill's willingness to devote his personal time and energy to the position was of great benefit to both TVA and its Alabama customers.

Unfortunately, Mr. Thrailkill's term on the Board is now nearing its end. I was dismayed to learn recently that President Obama apparently failed to recognize the importance of this position to the people of Alabama, and had nominated an individual from another State to fill it.

This is no small matter. Of the seven States that make up TVA, Alabama is the second largest in terms of revenue, the second largest in terms of employees, and the third largest in terms of service area.

Also, Alabama is home to several important TVA facilities, such as Guntersville Hydroelectric Dam, Browns Ferry Nuclear Plant, and the Bellefonte facility--which could become one of the first new nuclear power plants in the country.

Seven States make up the TVA service area. There are nine seats on the board. It is unacceptable that Alabama's long term representation be put in jeopardy.

Accordingly, I have been forced to use my position in the Senate to block the progress of these TVA nominations until this matter could be resolved.

I am pleased to inform the Senate today that after a series of conversations with the White House, we have reached an agreement that the next opening on the board will be filled by a nominee from the State of Alabama.

That vacancy is expected in March of next year, and we have agreed to begin in the next month discussing which individuals should be considered for this important position. I wish to thank the President and his staff for working with me on this compromise.

Senator Carper, who chairs the Environment and Public Works subcommittee that considers TVA nominations, has also stated his willingness to begin consideration of the Alabama nominee early to ensure he or she is confirmed before the start of the term. I thank him for that offer.

I am pleased we could reach an agreement on this issue, and I look forward to the Senate confirmation of an individual from my State who will offer strong leadership to TVA in the coming years.

Accordingly, I am also pleased today to lift my hold on the nominations to the TVA Board that are currently pending in the Senate. I urge my colleagues to move quickly with the nominations to ensure that the Board of Directors will have a quorum in August so that it may effectively conduct the business before it.

Mr. President, I thank Senator Brown for his important comments, and I join him in expressing my sympathy for their loss and my appreciation of the courage and dedication of our men and women in uniform.

I rise to speak of my concerns over Ms. Elena Kagan's refusal as Solicitor General of the United States to defend Federal laws--laws with which she clearly did not agree and with which her President, President Obama, did not agree. Her handling of this matter alone, in my opinion, as one who spent 15 years in the Department of Justice, who loves the Department of Justice, who believes in the rule of law in America, is a disqualifying act by her and should disqualify her from serving on the Supreme Court.

I laid out my concerns at her confirmation hearings and asked her to respond. I gave her at the hearing almost 10 minutes to do so. It was the only time I noticed she actually used notes. Her explanation was not satisfactory.

It is well known by anyone who followed the process that Ms. Kagan has personally opposed the don't ask, don't tell law--a law passed by a Democratic Congress and signed into law by President Clinton. It was not merely a military policy but a Federal law. She served 5 years in the administration of President Clinton in the White House. I am not aware that she ever protested to him about signing that law.

The law says, in effect, that openly homosexual persons may not serve in the U.S. military--don't ask, don't tell. Ms. Kagan was a fierce critic of that law when she was dean of Harvard Law

School. She justified her decision while at Harvard to ban military recruiters from the campus Career Services Office--in clear defiance of subsequent Federal law, the Solomon Amendment--on the basis of her opposition to don't ask, don't tell. The Congress passed four separate Solomon Amendments to make sure people such as Dean Kagan were not treating our military on campus as second-class citizens, which is how they were being treated.

She argued while at Harvard that don't ask, don't tell was a ``moral injustice of the first order.'' I accept that as her opinion. I do not agree with it, but I accept that as a legitimate opinion. But I do not accept her actions blocking military recruiting as legitimate.

Given her strong personal opposition to don't ask, don't tell, she was specifically asked when she appeared before the Senate Judiciary Committee on her nomination to be Solicitor General of the United States--the position in the Department of Justice that defends Federal law before the Supreme Court of the United States, the greatest lawyer job in the world, some say--whether she would be able to fulfill her duty as Solicitor General by defending this very law she had opposed.

She promised the committee under oath that she could and that she would defend the law. She said that her ``role as Solicitor General . . . would be to advance not my own views, but the interests of the United States.'' That is absolutely correct. That is the duty of the Solicitor General. It is a duty, not a matter of discussion. She stated she was ``fully convinced'' that she could ``represent all of these interests with vigor, even when they conflict with my own opinions.''

She said she would ``apply the usual strong presumption of constitutionality'' to the don't ask, don't tell law as reinforced by ``the doctrine of judicial deference to legislation involving military matters.''

There was no doubt about what Ms. Kagan's duty was as Solicitor General if, as was expected, she would be confronted with legal challenges to the don't ask, don't tell law. She had a clear duty under the law and in her duty as Solicitor General to defend this law of the United States. In addition, she had explicitly promised the Senate under oath that she would defend this specific law, even though she disagreed with it.

As it happened, Ms. Kagan was, indeed, faced with the opportunity to defend the don't ask, don't tell law immediately after she took office. Right after she took office, there it was.

In the months leading up to her confirmation, two Federal courts of appeals had decided cases challenging don't ask, don't tell. In one decision, the First Circuit--is in the Northeast of our country--upheld the law. They said it was lawful and constitutional. In the other case, called Witt v. Department of Air Force, the Ninth Circuit, on the west coast, considered to be the most liberal circuit in America, refused to uphold the law.

The Ninth Circuit's decision in the Witt case basically did two things. I hope my colleagues will pay attention to this because it is important. Did the Solicitor General, who now wants to be on the Supreme Court, fulfill her duty or did she not?

The Ninth Circuit ordered the military to go back down to the district court. This is the Court of Appeals, one step below the Supreme Court. They said: No, we want this case to go back to the district court to be decided after a trial, during wartime, I might add. The military would be required to justify the don't ask, don't tell law under a new legal standard that the court had invented out of whole cloth.

The Ninth Circuit said the government would not be allowed to defend the law as a rational, uniform policy that applies to all Armed Forces, as had been done in the First Circuit where the law was affirmed. The First Circuit affirmed it as a matter of law, without any big trial. Was this statute, this congressional action setting military policy, unconstitutional? The First Circuit said it was not. It was lawful. But the Ninth Circuit said the military would have to prove that the application of don't ask, don't tell ``specifically to [this individual plaintiff--Witt] significantly furthers the government's interest and [that] less intrusive means would [not] achieve substantially the government's interest.'' That was a devastating standard. It was very problematic.

After that unprecedented decision in mid-2008, the Solicitor General's Office then in the Bush administration immediately recognized the seriousness of the decision and authorized an appeal to the full Ninth Circuit en banc and asked the full circuit to overrule this three-judge panel decision.

The court did not agree to take the case and overrule the panel. But there were strong objections from several judges of the Ninth Circuit who thought their colleagues had clearly gotten the case wrong, as I truly believe they had.

At that point, the government was faced with a decision: Should they appeal the Ninth Circuit decision directly to the Supreme Court? By that time, the Obama administration had come into office and, Ms. Kagan, who believed this law was immoral and an injustice of the first order, had been confirmed as Solicitor General. It fell to her to decide whether to take the appeal to the Supreme Court. She refused.

Instead, she decided to let the Ninth Circuit decision stand and allow the case to go back down to the trial court for a prolonged trial. In so doing, she failed in her fundamental responsibility as Solicitor General and to her sworn promise to the Senate to defend the statutes of the United States regardless of her personal policy views.

I make that statement with care. I gave her 10 minutes, virtually uninterrupted, to explain why she made this decision, because it troubled me, as someone who understands the importance of the duties of the Solicitor General. If you do not fulfill your duties of Solicitor General, should you then be promoted to the U.S. Supreme Court, I ask? This was a very bad decision, in my view.

Her long answer I thought was hollow and at many points disingenuous. She gave three reasons why she acted the way she did.

First, she said she concluded it would be better to wait to appeal to the Supreme Court until after trial because a trial would build a ``fuller record'' of the case. Once the facts were better developed, she claimed, the government might be in a better position before the Supreme Court.

Second, she said that allowing the case to go back to the district court would help the government in a future appeal because it would be able to ``show what the Ninth Circuit was demanding that the government do'' in order to defend the don't ask, don't tell statute. Going through a disruptive trial, she said, would allow the government to tell the Supreme Court just how invasive and ``strange'' were the demands of the Ninth Circuit on the government. Well, they were invasive and strange. There is no doubt about that.

Third, she said, the appeal in the Witt case would have been ``interlocutory''--that is an appeal in the middle of a case rather than at the end, after a final judgment--and the Supreme Court prefers not to hear these kinds of appeals.

None of her explanations are credible, in my view. If you analyze this fairly, I do not believe any one of those explanations can be sustained. Another explanation, however, can be sustained.

It is true that appellate courts, including the Supreme Court, prefer to hear appeals at the end of a case rather than at the middle, but that is a decision the Court can make for itself and does make for itself. It is not something the Solicitor General should decide on the Court's behalf and not to take up a case when they have a good legal basis to take it up and to avoid an incredibly burdensome trial would undermine military policy in 40 percent of the country. The Ninth Circuit includes 40 percent of America under its jurisdiction.

At the very least there would have been no harm to the government in asking the Court to review the case early. No harm whatsoever. If the Court refused to take the case at that time--interlocutorily--the government could always take a later appeal. Any concerns about avoiding early appeals were clearly outweighed in this case. There already had been a split among the circuit courts of appeals. The Ninth Circuit ruling squarely conflicted with the First Circuit, and it was also at

odds with the decisions from four other circuit courts on similar issues. The Ninth Circuit opinion presented clean questions of law: Should this matter be decided as a matter of law, as the First Circuit said, or should it be decided only after some prolonged trial, as the Ninth Circuit said? This was a critically important matter that I think the Supreme Court, recognizing we are a Nation at war, recognizing this is an important Defense Department policy, would have agreed to hear.

Ms. Kagan's second explanation--that letting the case go to trial would allow the government to just show how painful a trial would be-- makes no sense. The Ninth Circuit made it very clear in their opinion that the government was going to have to justify the application of don't ask, don't tell to this specific plaintiff--Ms. Witt--to prove that this specific plaintiff was going to harm the military if she were to be allowed to remain in the Air Force. It was also obvious that such a trial was going to be disruptive to the military and that it would harm the ``unit cohesion'' that Congress had set out to protect when it passed don't ask, don't tell.

Ms. Kagan's predecessors in the Department of Justice and in the Solicitor General's Office immediately recognized the damage that would result from allowing the Ninth Circuit decision to stand. That is why they asked for a rehearing immediately. At that time, this is what they said:

[The Ninth Circuit decision] creates an inter-circuit split

. . . a conflict with Supreme Court precedent, and an

unworkable rule that cannot be implemented without disrupting

the military.

I think they were exactly right on that. The Ninth Circuit decision, they went on to say, made the constitutionality of a Federal law setting military policy for the entire Nation ``depend[] on case-by- case surveys, taken by lawyers, of the troops in a particular plaintiff's unit.'' And that is true. Immediate review, they insisted, was ``needed now to prevent this unprecedented and disruptive process.''

Most importantly, Ms. Kagan's first explanation to the Judiciary Committee for her decision to send this case back to trial--that she thought the government's case would benefit from a fuller factual development of the case--was simply false. The records of this case on remand to the District Court show that Ms. Kagan knew--knew--at the time she decided to let the case go back to trial that such a trial was going to be massively disruptive.

I have studied the record in the case as it headed for trial, where lower ranking lawyers in the Department of Justice are now trying to defend the case at trial. These lawyers have been fighting desperately to avoid or to limit this open discovery process. According to these career attorneys, the discovery process is ``threatening'' and ``jeopardizing the unit morale and cohesion.''

Remember, Ms. Kagan told us--the members of the Judiciary Committee, during her confirmation testimony--that building a factual record would be good for the government's case. But here the career lawyers who are defending the case are contending that building this factual record is bad for the government, and these lawyers are right.

The plaintiff in this case has asked for and received, by virtue of the Ninth Circuit order--and this was plainly predictable from reading that order--access to the personnel records of the entire military unit of the plaintiff. They have demanded depositions of other soldiers who served with the plaintiff before she was separated from the military. They have demanded the right to interview soldiers about their private lives, their personal views of their former colleague, and their private thoughts about sexuality.

As I have said before, this is not just a case in which Ms. Kagan showed bad legal judgment. She did not send her client, the U.S. Air Force, down this path by mistake, it seems to me. She knew this was going to happen, and I believe she had reasons other than a strategic plan to defend the law as her reasons in making this decision.

We know Ms. Kagan realized a trial would harm the military's interests because she said so to the lawyers on the other side of the case in the weeks before she made the final decision not to appeal. Once the case was back in this trial court, in this district court, the plaintiff's lawyers in one of the hearings made this statement to the trial judge there:

[T]he government just doesn't want any discovery. I have

heard that message from the government clearly--loud and

clear. [We] were asked to meet with the Solicitor General of

the United States in April, and we heard that message loud

and clear that discovery is a big problem.

So they had been asked, these lawyers, to go to Washington to meet with the Solicitor General to discuss the case and were told at that meeting that discovery was bad. Yet she testified in our hearing just a few weeks ago that she thought it was good for the government.

In May of 2009, as Solicitor General, she made a decision to block an appeal to the Supreme Court. Before she made that decision, she had already met with these opposing counsel. And who were these lawyers? They were lawyers from the ACLU who were committed to the defeat and the elimination of this don't ask, don't tell law. She told them ``loud and clear'' that developing a factual record would be bad for the government. Yet she told us just a few weeks ago that it was good; that it was going to help the government's case.

It appears to me that the most plausible--almost the only--conclusion that one can reach is that Ms. Kagan and the Obama administration generally were trying to keep the Supreme Court from deciding the constitutionality of don't ask, don't tell. Ms. Kagan, like the President, is personally opposed to don't ask, don't tell. The President has asked Congress to repeal don't ask, don't tell, and there is legislation pending now in the Senate that would repeal that law.

But given the record of the Supreme Court on questions of military personnel policy, I am confident that the Ninth Circuit's radical decision would have been overturned had the Solicitor General taken the appeal. And given the timing of the case, we would likely have been reading a few weeks ago of a Supreme Court opinion holding that don't ask, don't tell was a constitutionally legitimate exercise of Congress's power over military affairs. If you think about it, you can see why such a ruling--upholding the constitutionality of a law that the administration wants to repeal--might not be politically helpful to them in that process.

As I said earlier, there was another case dealing with don't ask, don't tell where the First Circuit had upheld the law. Of the 12 plaintiffs involved in that First Circuit case, 11 of them decided to abandon their case and not appeal. In other words, they lost, they could have appealed to the Supreme Court, but hey abandoned their appeal and accepted the loss.

Why would they do that? Why would their lawyers allow them to do that? Because, it appears to me, those defendants and their lawyers-- and included among some of those lawyers were Ms. Kagan's former colleagues from Harvard Law School--knew that the Supreme Court would likely uphold don't ask, don't tell if they took an appeal. That is what they did not want.

Only one of the plaintiffs insisted on appealing to the Supreme Court--1 of the 12--in the face of much resistance from his legal advisers who, as you can see, were less interested in vindicating the right of those specific defendants than they were trying to create the best possible strategy to undermine or to defeat don't ask, don't tell. Interestingly, Ms. Kagan, again, did what the lawyers attacking the law wanted.

One of the defendants wanted to appeal the First Circuit case. She could have allowed that appeal to go forward and gotten a definitive Supreme Court ruling. But she wrote the Supreme Court that they should not hear the appeal of the First Circuit; they should not accept that case for Supreme Court review. By urging the Court not to hear an appeal from that decision she denied the government a definitive decision from the Supreme Court, which I think was within their grasp.

Actually, one of the reasons she urged the Supreme Court not to take the appeal in the First Circuit case was because she said the Ninth Circuit case would be a better case for the Court to review. Then, when the Ninth Circuit case was ripe, she did not appeal it. In

effect, Ms. Kagan prevented the Supreme Court from ruling on the constitutionality of this law--a law she so strongly opposed.

So I think it is clear. It would seem to me to be clear. If I am wrong about this, I would like to see my colleagues explain it. I offer them an opportunity. I don't think I am wrong. I have tried a lot more cases than Elena Kagan ever tried--since she has never tried one. I think it is clear her strategy was to avoid a Supreme Court ruling-- because she thought the Supreme Court would uphold don't ask, don't tell--and to drag out the proceedings in the lower court in hopes that maybe the administration would be able to convince Congress to repeal the law before the Supreme Court ruled. The record shows she was willing to do so, even if it meant this military unit would be turned upside-down by the lawyers from the ACLU.

Remember, in each case--even in the First Circuit case, where they had lost--the ACLU lawyers did not want that case to go on appeal. And in the Ninth Circuit case they did not want the case to go on appeal to the Supreme Court. Why? To me, that is the final argument. Why did the Solicitor General acquiesce and adopt the very policy the ACLU lawyers wanted--not to appeal to the Supreme Court--other than that she did not want a definitive ruling and agreed with them it was likely the Supreme Court would affirm the law? I think that is what we are talking about.

I hate to say that. That is why, in an unprecedented way--I don't think it has ever happened since I have been in the Senate, certainly for a Supreme Court nominee, that they were given a full 10 minutes to answer uninterrupted why they made that decision.

Her answer was unsatisfactory for the Solicitor General, the lawyer for the United States of America, whose duty and explicit promise was to defend don't ask, don't tell, even though she and her President did not agree with it.

I have expressed my concern in this process, that Ms. Kagan's background and her record is more that of a political lawyer than a real lawyer. She certainly has never been a judge. She has never been, for any real period of time, a real lawyer. She went right out of law school, had 2 years in a private law firm and 14 months as Solicitor General.

These political lawyers, sometimes they do not grasp the responsibility and duty and the power and the beauty and the majesty of the American legal system. They think it is all politics. They have not been before judges as I have been, as have many other lawyers by the hundreds of thousands in America, and seen justice rendered day after day--and sometimes seen injustice rendered--and know how to admire and appreciate justice and objectivity and legal acumen.

Ms. Kagan's willingness to advance a political agenda without regard for her duty strikes at the very root of the rule of law in America, our greatest strength. As the hymn says, our liberty is in law. A person who cannot constrain herself to her proper role, to fulfill her duty to defend law, even when it runs contrary to her personal views, is no more likely to follow a law she dislikes if she is elevated to the Supreme Court. I suggest that is a threat to justice in America.

I do think this is another incident--there are others in the record of this nominee--that indicates this is a political lawyer, an agenda- driven lawyer, someone who has never served as a judge and never truly practiced law. The horrendous decision in not pursuing the opportunity to get a final decision from the Supreme Court on don't ask, don't tell, I believe, was made for reasons other than faithfully fulfilling her responsibilities as Solicitor General to defend these laws. And I believe it is disqualifying for one who seeks to serve on the highest Court in the land.

I yield the floor and suggest the absence of a quorum.

She did use that word.

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

There is absolutely no doubt about it. She openly sent an e-mail to all students and said she considered this policy that Congress adopted a moral injustice of the first order.

On one occasion a military recruiter was apparently working in one building, and she spoke to a protest rally outside the next-door building, creating a climate that was certainly hostile to the good efforts of that military officer.

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

Absolutely. I think that is the essence of what happened. She eventually acknowledged that at no time was the Solomon Amendment not in force at Harvard when she was there.

I know Senator McCain remembers that we passed four versions of the Solomon Amendment because every time one was passed, these law schools or others figured out a way to get around it. We finally wrote one they couldn't get around. This was systematic obstruction by universities that I think does not speak well of them.

She also filed a brief with the Supreme Court attacking the law, and, as the Senator noted earlier, the Supreme Court rejected that brief 8 to 0.

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

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

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.

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----

Should not have made the statement she did in that regard.

I yield the floor.

Mr. President, I thank the Senator from Idaho for his comments. He is one of the most capable lawyers in the Senate. He is a practicing lawyer, clerked on the court of appeals, and is scholarly and careful in what he says. I believe he has raised some very troubling points about this nomination that should be considered.

I say to Senator Crapo, I notice today that a single sitting Federal judge in California has just wiped out proposition 8 that was passed by a majority of the people in California. I guess there were millions voting on that, which simply said a marriage should be defined as being between a man and a woman.

This judge struck down proposition 8 and, obviously, at some point, this will get to the Supreme Court of the United States, as the Senator well knows. It will go first to the Ninth Circuit, on which the Senator clerked, and then it will go to the Supreme Court probably. We will have the nominee who is before us today who has already demonstrated at Harvard that her views about don't ask, don't tell and similar social and marriage issues involve such strong feelings on her part that she has not been able to follow the law. I am worried about that. I think the American people are worried about that, and I think they have a right to be.

Let me talk a little bit about today's decision by a Federal judge in California that was replete, in my view, with results-oriented liberal judicial activism. I think that is what it is, as the court explained in substituting its judgment, the judge's judgment and opinion, for the judgment of the people of California expressed in a full statewide referendum. Now this is a powerful thing.

Was there some clear statement in the Constitution or law that would invalidate the people's expression of what a marriage should be in the State of California? I submit not. This is what the judge said.

[W]hat remains of proponents' case is an inference, amply

supported by evidence in the record, that Proposition [8] was

premised on the belief that same-sex couples simply are not

as good as opposite-sex couples. Whether that belief is based

on moral disapproval of homosexuality, animus towards gays

and lesbians or simply a belief that a relationship between a

man and a woman is inherently better than a relationship

between two men or two women, this belief is not a proper

basis on which to legislate.

So the judge just declared that laws that are on the books in virtually every State in America--and certainly by referendum in California--are improper. States cannot legislate in this area. It is not ``a proper basis'' on which to legislate.

That is what activism is. It is a judge replacing the people's views with his views.

President Obama has made similar statements. He said that judges should decide cases based on ``one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.''

This was in a floor speech in the Senate delivered from right over there from his desk in which he opposed Chief Justice John Robert's confirmation to the Supreme Court--one of the finest nominees ever to be brought before this body.

This is the kind of rationale, the kind of empowerment that many judges feel. Well, they can just use their broader perspective on how the world works or the depth and breadth of their empathy or their deepest values or core concerns. Whose core concerns? The judge's core concerns. What does this have to do with law, I ask?

Indeed, I would suggest that this whole litany of matters raised by President Obama is not law. These are invitations for judges to allow their bias to influence how they decide cases, an encouragement for judges to use their power of defining the words of our laws and Constitution to promote their agenda. This is an unacceptable view. It is contrary to the great heritage of law this country is based on and should not be tolerated by the judiciary.

When Justice Stevens announced his retirement, whom Ms. Kagan would replace--he served 38 years; he served until age 88--if Ms. Kagan were to serve till that age, she would serve 38 years on the Supreme Court without ever having to answer once to the American people. She has never tried a case. We have no judicial history. She has never really practiced law in any serious way. She has been a political lawyer most of her life. She has been an advocate for a lot of leftwing views and that is all right.

You can have a view that the military's don't ask, don't tell policy--law passed by Congress; it is a law not a policy--you can oppose that. That is fine. That should not disqualify you from serving on the bench. You can be against the death penalty and serve as a good judge if you understand that if the law requires the death penalty, you should have to apply it. You cannot obstruct the law because you do not agree with it. This is basic to the understanding of the American jurisprudence system.

When Justice Stevens announced his retirement, President Obama rephrased his empathy standard that took a lot of criticism and, indeed, was renounced by Justice Sotomayor in her confirmation hearings last year. He said he wanted a nominee with a ``keen understanding of how the law affects the daily lives of the American people.''

Well, I think that is what Congress is supposed to do. We are supposed to be monitoring how the laws affect the daily lives of the American people. If we do not think, as a matter of policy, it is doing it correctly, we should fix the law, change it, eliminate it, and do whatever is appropriate. That is not the judge's responsibility. The judge's responsibility is to enforce the law, to follow the law, or else he is a lawmaker instead of a judge.

When the President announced Elena Kagan's nomination, he said: ``She has often referred to . . . Justice Thurgood Marshall, for whom she clerked, as her hero'' and ``credits him with reminding her that, as she put it, `behind law there are stories--stories of people's lives.' ''

Well, there are stories, and a judge should certainly be very aware of the facts in a case. Judges should not deny relevant evidence. But in the end, the judge must find the true facts, and then apply that truly to the law as it is whether they like it or not. Activism arises when a judge allows their personal values, even deepest values, core concerns, broader perspectives on how the world works, and the depth and breadth of their empathy to influence decisions. Isn't that bias? Who knows what these judges believe--they have a lifetime appointment and they get to impose their core concerns on us? No. This is a serious matter.

I think the American people understand it because when you empower a judge to do these kinds of things, you have given him control over you. You have given him the power to redefine marriage when the people of the State don't want to. And you have no recourse. They have a lifetime appointment. Some people say nine judges can do that. Only five, really. It only takes five. They meet and have tea and they go to the great salons of Europe, and they get these ideas about how to make America a better place, and they want to come back and get itching to write it into some opinion somewhere.

I would say that no drafter of the Constitution or any of the provisions in it at any point that those amendments were adopted would ever have imagined a Federal judge in California would declare that the people of California's decision to define marriage as it has been since the founding of the Republic as between a man and a woman is unconstitutional. Make no mistake. When a judge says something is unconstitutional, this is not a little bitty matter. The American people have no recourse, except to pass a constitutional amendment. It takes two-thirds of both the House and the Senate and three-fourths of the State. They make it so because they say it is so. There is nothing in the Constitution that defines marriage. If it is defined--the most logical argument is that when it was written, if they had wanted to change the definition of marriage, they would have put it in there, because every State in America at the time the Constitution was drafted and every amendment to it defined marriage as between a man and a woman.

That is what we get. Right now we have had battles over those kinds of

issues. They are the cause celebre of the day, but they become further issues in the future. Do we think maybe in the future it comes down to whether a judge can require the State to raise taxes? Will it require a State to provide insurance to everyone or the Federal Government to do so because the Constitution somewhere said that everybody should have equal protection of the law? Does that mean everybody should have health insurance?

We have one nominee President Obama has submitted, Mr. Liu, who says everybody in America is entitled to constitutional welfare rights. Presumably, if you file a lawsuit in front of him, he would order the State to provide welfare to everybody, whether we can afford it or whether the legislature decided that is the right thing. This is what activism is. It is a serious matter.

I wanted to speak of a few additional points for discussion that relate to matters that have been raised in the last day or so about this nomination. I am trying to be correct in what I say. I want to be correct and fair. This nominee deserves fair treatment and accuracy, and we should try to achieve that in the Senate. If I have said anything before or say anything now that is in error, I hope my colleagues will call that to my attention and I will be pleased to admit that I made an error, if I have, and correct it. Likewise, I am beginning to wonder--I have said this before--since nobody has corrected any significant matter I have stated, they must be agreeing to it.

One of our Senators defended Ms. Kagan by insisting that any arguments she made as Solicitor General were made on behalf of her client, the United States, and should not be held against her. They suggest that her actions as Solicitor General should, therefore, be immune from criticism. In other words, she didn't necessarily do what she thought ought to be done, but she had a duty to defend the law.

It misses the point about the Witt case, the important case I talked about in which I criticized her decisions as Solicitor General. The problem with Ms. Kagan's actions in the Witt case is she did not make all appropriate arguments in defense of her client, the United States. She declined to effectively represent her client, the United States. I went into some length about that today. We are not saying that she must agree with every argument she made as Solicitor General in terms of policy. Solicitors General are required by their duty to defend the laws Congress passes. They don't have to agree with the law, but they have a duty to defend it if it is challenged as being unconstitutional or in some other fashion improper.

What is most important about this is that in the Witt case, it dealt with the military's don't ask, don't tell policy. People can disagree on that, as I indicated, but it was the law passed by Congress and signed by President Clinton. She spent 5 years in the Clinton White House. She never complained to him about the law, to my knowledge. She didn't protest or quit working for him. She goes to Harvard, however, and bars the military from being able to enter the Career Services Office and recruit students because she didn't like the law Congress passed and her former boss signed. She punished the military officers who were there on campus to recruit Harvard students to be JAG officers in the military. Maybe those officers just got back from Iraq and Afghanistan--we were in two wars at the time--yet they were treated as second-class citizens, not allowed to enter the career services office.

Oh, they could call the little veterans group on campus and they could ask them and they could help them. One officer wrote in a memo that was produced by the Defense Department: We were relegated to wandering the halls hoping somebody would stop and speak to us. They weren't able to recruit properly on the Harvard campus. Her suggestion that this was nothing she was doing and unimportant is not accurate. It was a misrepresentation of the grave circumstances that occurred at Harvard when she was dean. She led this effort. She personally led the effort to reverse Harvard's policy and deny the military the right to enter the Career Services Office. They said, Well, it is OK, they can call the veterans groups. They were offended by it. They sent out an e- mail and said we are not able to arrange for these kinds of meetings. We are law students here who happen to be veterans. We can't do what the career services can do to provide assistance to the military. It was plainly against the Solomon amendment which was in effect at all times when she reversed Harvard's policy and began to bar the military from coming on campus.

When she came up for confirmation last year to be Solicitor General of the United States and there were cases filed around the country challenging the constitutionality of don't ask, don't tell, it was clear it might fall to her duty to defend that law, and she was asked in committee about it. She was asked: Will you defend the law? She said: Absolutely, she would. She committed to it. Generally she would commit to defending all laws of the United States and, specifically, in answer to a written question, she committed to defending don't ask, don't tell.

What I wish to say is that my colleagues were in error in their statements about this because it wasn't that she made arguments to the Court that she didn't believe in and that somehow we are unfairly criticizing her for doing that. What I am saying is there were arguments she did not make that she was duty bound to make to defend the law and actions that she was duty bound to take.

It has been said by one of our colleagues that it is ``Lawyer 101'' that an attorney will take positions on behalf of the client even when the lawyer disagrees with it. Well, that is exactly right. An attorney does have an obligation to vigorously defend his or her client, but Ms. Kagan refused to do that. Her client was the United States of America. When the Solicitor General of the United States stands before the U.S. Supreme Court or any lawyer--as I had the privilege to do for 15 years--in the Department of Justice stands up in a Federal court, do you know what they say? The first thing they are asked is, Counsel, the judge will say, is the government ready? And the lawyer says, The United States is ready, Your Honor. The United States is ready. That is who the lawyer's client is: the United States of America. It is not her personal view of don't ask, don't tell. It is not President Obama's interests or idea of what should be don't ask, don't tell; not his views. It is the United States of America. And what is the position she was defending? The lawfully passed statutes of this Congress signed by her former boss, President Clinton, passing the law don't ask, don't tell that was being challenged.

I am of the view that in failing to properly defend that case, as I said earlier, she violated a direct, specific commitment she made to the Congress and violated her duty even if she hadn't made that commitment as Solicitor General to defend the laws of the United States.

One of my colleagues made reference to Justice Souter, saying:

Justice Souter pointed out in a recent commencement address

recently [that] different aspects of the Constitution point

in different directions toward different results, and they

need to be reconciled.

Judges do have to do that.

Acknowledging these inherent tensions is not only Main

Street, it is as old as the Constitution.

Well, there is some truth to that, but Justice Souter's speech and others in his philosophical mold are very troubling. In fact, Justice Souter's speech intellectually followed on to Justice Brennan's 1985 Georgetown speech which is clearly the playbook for judicial activism. In it, Justice Brennan, former Justice of the U.S. Supreme Court, stated:

For the genius of the Constitution rests not in any static

meaning it might have had in a world now dead and gone, but

in the adaptability of its great principles to cope with

current problems and current needs. What the constitutional

fundamentals meant to the wisdom of other times cannot be

their measure to the vision of our time.

So if the Constitution's drafters decided that every American from time immemorial, unless the Constitution was specifically amended, had a right to keep and bear arms, Justice Brennan would say, Well, we can look at that. We need to see what the vision for our time is. Maybe we need to consult the Europeans as they did in this recent case, the dissenters in a 5-to-4 vote that narrowly upheld the right to keep and bear arms.

Allowing judges to determine the vision of our time is a recipe for legislating by unelected judges. What is the vision of our time is decidedly in the eye of the beholder. It is the job of the elected branches of government to make these calls in our constitutional system, not the unelected judiciary. The job of the judiciary is to interpret the law, not make the law. That is so basic. Don't we all know that?

As Professor John Baker of LSU put it:

The choice is between two distinct modes of decision-

making.

Legislators make laws; they do not write opinions.

Legislators can legitimately make laws to govern future

conduct only. . . . Legitimate judging, on the other hand,

concerns the existing law. Interpretation of the existing

law, contrary to lawmaking, focuses on the past. Legitimate

interpretation of existing law explains the result in a well-

reasoned opinion.

I think that was nicely said. Judges are not empowered to amend laws, to promote their vision. They are not empowered to alter the meaning of the words of laws or the Constitution to promote their core values.

What is Ms. Kagan's view about that? She wrote a law review article entitled ``Confirmation Messes, Old and New.'' It is kind of interesting. She has said nominees should be far more forthcoming when they testify. Most people think she failed to meet the standard in her own law review article. She also quoted Stephen Carter's book, with approval, saying:

In every exercise of interpretive judgment, there comes a

crucial moment when the [judge's] own experience and values

become the most important data.

The judge's own experience and values become the most important data? That is not law. I don't know what that is, but it is not law.

In a 2004 interview in Metropolitan Corporate Counsel, she said:

The attitudes and views that a person brings to the bench

make a difference in how they reach those decisions.

Is that not biased? Is that not an affirmation that a judge can bring to the bench their attitudes and views, instead of being a neutral umpire, putting on that black robe to symbolize impartiality? I think it is. This is a philosophy of law that is afoot in many of our law schools. There is no doubt about it. It is out there. People advocate it. She wrote about and advocated it. Many judges are adhering to this, and it is wrong. They are not empowered to do these kinds of things.

In one interview in a magazine, in 2004, she said:

There should be a range of opinions on the [Supreme] Court;

it should not just be about lawyerly qualifications.

The opinions we need on the Court are that a judge should identify the law and then follow it. That is what the view should be.

Mr. President, people are still asserting things about the Harvard issue that I don't think are quite accurate. I do not believe she handled the Harvard military question in any way that is defensible. I have looked at it very carefully. I have laid it out in some detail. And now I wish to respond to some of the statements that have been made.

One their efforts has been to point out and to assert that Elena Kagan treated veterans at Harvard Law School with great respect, hosting them for private dinners in her home, publicly recognizing them and thanking them for their service to our country. She has been praised by several law school veterans who have said Ms. Kagan is not antimilitary. Those things have some truth to them, and Senator Leahy has introduced some letters.

But, for the most part, Dean Kagan's outreach to Harvard Law veterans began after all this brouhaha and the resistance to military recruiting occurred on campus and things got tense.

It was not such a pleasant time. The military veterans were not comfortable. She talked about other students being uncomfortable with the military on campus. She said that herself. So the annual veterans dinner I referred to began in 2006, after the university president, Larry Summers, had instructed the law school to restore equal access to military recruiters and after the Supreme Court had rejected her argument that the Solomon Amendment, which Congress passed to make sure these law schools either admitted the military or ceased getting Federal money--her argument that the Solomon amendment did not require Harvard to give the military access to the career services office was rejected by the U.S. Supreme Court 8 to 0.

According to the military veterans who attended Harvard Law School during this period, 2004 to 2006, the dinners were actually initiated at the suggestion of the school--the university's dean of students, Ellen Cosgrove, to whom the military veterans had expressed their concerns about the hostile campus environment toward the military. In other words, they had gone to Dean Cosgrove and complained about the hostile environment on campus toward the military, and she started some of these dinners. It was only later that Dean Kagan--who was speaking at one time to a protest rally while the military recruiter was in the next building trying to recruit students--she was out there speaking to a protest rally about the military being on campus, saying how wrong she thought the military was.

Most law school veterans who have praised Dean Kagan were either not present at the law school during the height of the controversy or were not then even in the military. Almost all of them were more recent graduates or current students at Harvard, people who liked her outreach efforts at that time. But that was after she was forced to let the recruiters back on campus by the President of the school and by the Supreme Court. None of the individuals who have written and said positive things were members of the student veterans association that she tried to conscript to take care of the needs of the military recruiters. None of them wrote any such letter.

I wished to share a few of those thoughts and again challenge my colleagues to be as accurate as they can in what they say, either for or against this nominee. She is entitled to fair treatment, but these matters are very serious. The American people want judges who are committed to their oath, and their oath says they are to be impartial, that they are to do equal justice to the poor and the rich, and that they are to serve under the Constitution and laws of the United States, not above it. That is the commitment they must have.

We, the Senate, should never vote to confirm any judge--liberal activist or conservative activist--who, once they put on that robe, will not be impartial or provide equal justice but will allow personal biases, core beliefs, prejudices or politics to influence how they decide cases. That is a disqualifying factor.

We must know that any nominee is committed to the ideal of impartial justice. I don't believe this nominee has ever demonstrated that she would be unbiased in these situations, and, indeed, the record indicates she has consistently allowed her personal feelings to override the law and her duties. Therefore, I will oppose the nomination.

I yield the floor and suggest the absence of a quorum.

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

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

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

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.

I thank the Chair and I yield the floor.

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

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.

If the Senator will yield?

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.

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.

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.

I do object.

I object.

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.

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.

I object.

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

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