Sessions: Kagan Will Push Big Government as Justice

Friday, 06 Aug 2010 07:37 PM

 

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Text of remarks made by Sen. Jeff Sessions, R-Ala., in his closing argument on the nomination of Elena Kagan to the U.S. Supreme Court:

"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 them 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 to be made by career bureaucrats whose names Americans will never hear and whose faces they will never see.

Story continues below video.


Our nation has a choice to make. We either restore -- or we 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 authored opinions that would have denied Americans their right to keep and bear arms and severely diminished the right to free speech during elections. 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 in order to advance their own political agendas. This progressive, activist judicial philosophy strikes at the heart of our democracy and is a direct threat to our liberty.

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." And this is kind of judge President Obama believes he has found in Ms. Kagan: someone who shares his big-government vision and is willing to advance it from the bench.

Indeed, throughout Ms. Kagan's career she has put her politics above the law.

Ms. Kagan has never been a judge and never argued before a jury. She has practiced law for just three years. Ms. Kagan has less real legal experience than any nominee in the last half-century.

The experience Ms. Kagan does have is that of a political operative. And whenever her political views have clashed with her legal obligations, her views -- and not her duty -- won the day.

As a Supreme Court clerk she pushed a progressive agenda without regard for the Constitution's text or history. She even wrote that 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 firearms importations that one Clinton official said amounted to "taking the law and bending it as far as we can go."

Ms. Kagan also worked aggressively to ensure the wide availability of partial-birth abortions. Instead of providing President Clinton with sound legal advice based on the best medical evidence, she pushed the President away from his moderate position. She even revised a medical statement to imply a medical need for the gruesome procedure that did not exist.

Next, as dean of Harvard Law School, Ms. Kagan would once again sacrifice legal principle for political gain.

Ms. Kagan inherited a policy of equal and unfettered access for military recruiters on campus. But Ms. Kagan reversed this policy, kicking the military out of the campus recruitment office as our troops risked their lives overseas.

She did this in clear, knowing violation of federal law. The Solomon Amendment -- passed by this Congress four times -- requires unrestricted, equal access for military recruiters. Ms. Kagan knew what the law said, and -- as she herself admitted -- knew that it was in force every single day that she was dean.

But Ms. Kagan put her politics above the law -- and above the best interests of our soldiers -- stripping military officers of their official campus access.

Ms. Kagan justified this conduct by saying that 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 -- instead of working within our democratic system -- Ms. Kagan took it upon herself to defy the law, and to demean the noble men and women who serve this country.

For that, there can be no justification.

After Harvard, Ms. Kagan assumed the post of Solicitor General. In that job, it is Ms. Kagan's sworn duty to defend all federal laws, including those she may personally oppose. As every good lawyer knows, her job is to represent her client-and the client of 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 9th Circuit issued a deeply flawed ruling against Don't Ask Don't Tell -- the law Ms. Kagan so strongly opposed -- she did not appeal the ruling despite great chances of success. Instead, she did exactly what the ACLU, the opposing counsel, wanted her to do, and let the ruling stand.

This was a test of Ms. Kagan's legal character and she failed. I have studied this case closely. The only explanation for her not appealing to the Supreme Court was that she did not want a victory for the United States.

In short, she did not fulfill her duty, and she did not live up to her sworn promise -- made to this Senate -- to "vigorously defend" that statute, and all others, if given the chance to hold that coveted post.

Given this record, it is not surprising that Ms. Kagan's judicial heroes are activists who reject and repudiate the very idea of objectivity. But it is objectivity -- the search for what it is right and true -- that make our system of justice so extraordinary and so unique.

These concerns were addressed during the hearing. Ms. Kagan was given every opportunity to respond. But she opted for political spin at the expense of factual accuracy.

In so doing, she only further demonstrated that she lacks the qualities necessary to sit on the Supreme Court.

Some have said that senators are opposing this nominee for partisan reasons, that Ms. Kagan's 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 the 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. But surely that deference cannot extend so far as to include a nominee who is unable to serve under the Constitution.

The American people will not easily forgive this Senate if we confirm Ms. Kagan to the Supreme Court. They will not easily forgive the Senate if we further expose our Constitution to revision and rewrite by judicial fiat.

Now, more than ever, we need the Court to be an impartial defender of our constitutional liberties. But, as Vice President Biden's own chief of staff emphatically said, "Ms. Kagan is clearly a legal progressive." And, if confirmed, I fear she will continue putting her politics above the law as she has so often before.

I invited those who support Ms. Kagan's nomination to refute the record that I have presented. But not one error has been identified by Ms. Kagan's supporters. So we are left with the same core 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 Americans' economic decisions. What Ms. Kagan apparently fails to realize is that the people should control the government-not the other way around.

That is why no Supreme Court Justice should simply rubber-stamp the agenda of any president. 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 constitutional heritage or we let it slip away. 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 in every place and time it has been tried.

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

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