Senate Proceeding on Aug 3rd, 2010 :: 1:39:55 to 2:15:20
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1:39:35 to 1:39:55( Edit History Discussion )

Dianne Feinstein: quorum call: a senator: mr. president? the presiding officer: the senator from california is recognized. mrs. feinstein: thank y very much, mr. president. i rise to speak -- the presiding officer: the senator is advised the senate is in a quorum mrs. feinstein: i ask that the quorum call be vitiated. the presiding officer: without objection, so ordered. mrs. feinstein: thank you. i rise to speak in support of

1:39:55 to 2:15:20( Edit History Discussion )
Speech By: Dianne Feinstein

1:39:56 to 1:40:17( Edit History Discussion )

Dianne Feinstein: the nomination of elena kagan to be associate justice on the united states supreme court. having served on the senate judiciary committee now for 17 years, i've seen the impact that new justices have on the court, and i strongly believe that these votes are among the very most important that we cast in this chamber.

1:40:18 to 1:40:38( Edit History Discussion )

Dianne Feinstein: there is no question that the confirmation process has becom heated in recent years. outside interest groups, the 24-hour news cycle have placed far too much emphasis on sound bites, half-truths and hyperbole. but none of this should obscure the fact that these are in fact

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Dianne Feinstein: have struggled with courts that have become beholden to political pressures or fallen subject to corruption. i think in pakistan if where in 2007 president musharraf declared a state of emergency

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Dianne Feinstein: and used it to remove justices from the supreme court. or mexico, where corruption is so bad that in 2008 president calderon called for a fundamental redesign of the entire judicial system. in the united states, we have with guarded our judiciary, and it has served us well.

1:41:44 to 1:42:04( Edit History Discussion )

Dianne Feinstein: our supreme court has acted as a true check on government abuses, as a reliable and impartial tribunal for the resolution of private disputes and as a final arbiter where the american people can come to seek protection of their fundamental constitutional rights.

1:42:05 to 1:42:27( Edit History Discussion )

Dianne Feinstein: as justice breyer said in a recent public address, "the virtue is that a country of 300 million very diverse people will resolve their differences under law and not with guns on the street or through riots." end quote. in the context of world history,

1:42:28 to 1:42:48( Edit History Discussion )

Dianne Feinstein: this is most impressive. when it comes to the supreme court, nominations merit careful attention because any one justice can have a substantial effect on the court's rulings. the cases that raoefpt supreme court are -- that reach the supreme court are not easy ones. when the law is clear, a case is

1:42:49 to 1:43:09( Edit History Discussion )

Dianne Feinstein: settled by the parties or resolved by the district courts or the courts of appeal. it's whethe law is open to multiple interpretations or when constitutional values must be weighed against each other that a case is likely to reach the supreme court.

1:43:10 to 1:43:32( Edit History Discussion )

Dianne Feinstein: in these cases, decisions are not automatic. instead, each of the nine justices must examine the facts, study the law and reach his or her best conclusion about what the law requires. the courts ruling stand not just as abstract statements for the

1:43:33 to 1:43:53( Edit History Discussion )

Dianne Feinstein: law books, but binding decisions with lasting impact on the lives of american people. there are examples in the newspaper every day. in 2005, the justices held a school district in seattle, held that they violated the equal protection clause by using race

1:43:54 to 1:44:16( Edit History Discussion )

Dianne Feinstein: as one of a series of factorsn assigning students to schools within that district. as an abstract decision this may be appealing, but its real impact will be to make it far more difficult for school administrators to maintain racial diversity in our public schools. another example, in a recent

1:44:17 to 1:44:39( Edit History Discussion )

Dianne Feinstein: antitrust case, justices put forth a new interpretation o the law that will allow manufacturers to set minimum prices for certain products. what this means for americans is when they go to the store, they may find that a particular electronic device or even a

1:44:40 to 1:45:00( Edit History Discussion )

Dianne Feinstein: shampoo hashe same price at every store and can never be put on sale. legislation to overturn this decision is still pending before the senate. in each of these cases justices were divided on the law. five justices agreed on the court's ruling.

1:45:01 to 1:45:22( Edit History Discussion )

Dianne Feinstein: the remaining four justices dissented and explained in vehement terms why they disagreed with their colleague's reasoning and result. the decisions were not formulaic. when i undertake my constitutional role of providing advice and consent, i do so with

1:45:23 to 1:45:43( Edit History Discussion )

Dianne Feinstein: the understanding that every nominee to court is not the same and each and every one could have a lasting impact on the future of our country. so with this in mind, i'm very pleased to support the nomina the next associate justice of

1:46:05 to 1:46:25( Edit History Discussion )

Dianne Feinstein: editor of the harvard law review. legal clerkships with the united states circuit judge and supreme court justice thurgood marshall. two years at the law firm of williams and connolly. a professor of constitutional and administrative law at the university of chicago.

1:46:26 to 1:46:46( Edit History Discussion )

Dianne Feinstein: a special counsel to the senate judiciary committee for the nomination of justice ruth bader ginsburg, associate white house counsel to president clinton. the deputy director of president clinton's domestic policy counsel. a professor at harvard law school.

1:46:47 to 1:47:08( Edit History Discussion )

Dianne Feinstein: the first woman dean of harvard law school and the first woman to ever serve as a solicitor general of the united states. an amazing bkground. i mean, you would think she was 106 instead of a very young woman. so it's easy to see why her name has so often appeared on short

1:47:09 to 1:47:29( Edit History Discussion )

Dianne Feinstein: lists for the supreme court. she is a woman of repeated firsts, though, if confirmed she'll be the fourth, not the first woman to sit on the supreme court. frankly, i've been surprised to hear some of my colleagues question elana kagan's credentials for the court.

1:47:30 to 1:47:50( Edit History Discussion )

Dianne Feinstein: let me srt with the argument made by some that her record is somehow inadequate because she lacks prior judicial experience. now, it is true that all nine justices on the current supreme court come directly from the

1:47:51 to 1:48:12( Edit History Discussion )

Dianne Feinstein: united states court of appeals. but that's a historic anomaly. it has never happened before. in fact, in the history of the court, approximately one-third of our justices have come to the bench with no prior experience as a judge. when a -- when the president

1:48:35 to 1:48:58( Edit History Discussion )

Dianne Feinstein: qualification that the correlation between prior judicial experience and fitness for the functions of the supreme court is zero. the significance of the greatest among the justices who have had such experience, holmes and cardoza, derive not from that judicial experience, but from

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Dianne Feinstein: the fact they were holmes and cardoza. end quote. in my own view judicial experience is a useful background, but it's only one of many. and it's a background that's well represented on the court today. as a matter of fact, entirely represented on the court today. so the point is this, when we

1:49:21 to 1:49:42( Edit History Discussion )

Dianne Feinstein: examine elana kagan's record, we shouldn't allow the characteristics of the current court to make us shortsighted. in the course of american history, the senate has confirmed justices with a broad variety of backgrounds. justices who were law professors, such as felix

1:49:43 to 1:50:04( Edit History Discussion )

Dianne Feinstein: frankfuter, attorneys in private practice such as warren berger, elected officials such as john mckinley, earl warren and james burns. and over 10% of our jtices are have, like elana kagan, come directly from the executive branch. 10% with no judicial experience

1:50:05 to 1:50:25( Edit History Discussion )

Dianne Feinstein: in between. these include: chief justice william rehnquist, who was assistant attorney general. justice byron white. justice robert jackson and chief justice harlan fisk stone who were both attorney of the united

1:50:26 to 1:50:47( Edit History Discussion )

Dianne Feinstein: states, and chief justice john marshall, who was the secretary of state. again, justices who distinguished themselves on the court, who came directly from the political experience. in my mind the president has made a wise choice with this

1:51:11 to 1:51:31( Edit History Discussion )

Dianne Feinstein: valuable attribute of having firsthand working knowledge of all three branches of government. if confirmed, she, justice breyer and justice thomas will be the only justices to share that distinction. take her experience with the

1:51:32 to 1:51:52( Edit History Discussion )

Dianne Feinstein: supreme court itself. as a 27-year-old pip-squeak, as she said before the committee, elana kagan had the privilege of working as a law clerk on the sort to justice thurgood marshall. the job itself is prestigious, and it's impressive that kagan was selected.

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Dianne Feinstein: the real value, however, was in giving kagan an inside view of the court through the eyes of one of our great justices, the lawyer who argued brown v. board of education, the first african-american justice on the supreme court, and a man who

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Dianne Feinstein: brought to life the court's most basic promise of equal justice under law. she had that experience. as elana kagan said in her confirmation hearing, through justice marshall she learned that our courts are -- quote -- "special as compared with other branches of governmt."

1:52:58 to 1:53:19( Edit History Discussion )

Dianne Feinstein: and for a new supreme court associate justice. today kagan has an equally unique perspective on the court. as the solicitor general, she sometimes -- she's sometimes referred to as the tenth justice because there's no other lawyer who interacts as frequently with the justices. in her time as solicitor

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Dianne Feinstein: general, she has filed hundreds of briefs and argued six cases before the supreme court itself. if confirmed, she will be one of only four sitting justices who has appeared on the advocate side of the supreme court bench. solicitor general kagan also

1:53:43 to 1:54:03( Edit History Discussion )

Dianne Feinstein: brings practical experience with the legislative branch. she worked in the halls of the senate as a special counsel to the senate judiciary committee for the ginsburg nomination and during the clinton administration she bore responsibility for advancing president clinton's domestic policy agenda as the dispute

1:54:26 to 1:54:48( Edit History Discussion )

Dianne Feinstein: work,ing negotiation, -- hard work, negotiation, collaboration and navigation of procedural obstacles that are required to move a difficult bill through congress. when the justices are called upon to interpret a statute or determine its it's essential that they have some appreciation for

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Dianne Feinstein: finally, elana kagan also brings experience as a participant in the executive branch. as the solicitor general, she has represented the united states government before the supreme court. as an associate white house counsel, she had advised president clinton on the scope of presidential powers an

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Dianne Feinstein: privileges. and as the dispute director of the domestic policy counsel counsel she supervised the president's policy initiatives not only by advancing legislation in congress, but also in agencies. already the debate has begun

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Dianne Feinstein: among legal commentators about whether kagan's work on the executive branch will skew her rulings in key cases. we heard this earlier this morning. dealg with the scope of the president's powers with respect to indefinite detention, warrantless surveillance, or the use of force outside a

1:56:14 to 1:56:36( Edit History Discussion )

Dianne Feinstein: declaration of war. the lessons of history, again, provide perspective here. i think if justice robert jackson, a former attorney general of the united states who wrote an opinion that now stands as the cornerstone for all

1:56:37 to 1:56:58( Edit History Discussion )

Dianne Feinstein: analysis -- and i mean that, all analysis -- on limits of executive power. we have heard this quoted by virtually every nominee before the judiciary committee when a question of executive power is levied. in the famous youngstown case in 1952, the court was called upon to decide whether the

1:56:59 to 1:57:20( Edit History Discussion )

Dianne Feinstein: president's authority as commander in chief allowed him to seize the nation's steel mills in order to ensure sufficient wtime production to meet the defense department's needs for the korean war. in his prior role as the attorney general of the united

1:57:44 to 1:58:06( Edit History Discussion )

Dianne Feinstein: president did not have the authority to seize the private steel mills. but in doing so he set forth a compromised framework stating that the president's power was greatest when he acted pursuant to an act of congress. in a zone of twilight when the congress has not spoken and at

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Dianne Feinstein: its lowest end when he acted contrary to the stated will of the congress. wh that justice jackson's compromise framework differed from the position h had taken as attorney general, he replied that a justice does not, and i quote -- "bind present judicial

1:58:32 to 1:58:53( Edit History Discussion )

Dianne Feinstein: judgment by earlier partisan advocacy." end quote. that's a very profound statement from a great justice who wrote an opinion that has stood the test of time. i they'll story to make this point, elana kagan clerkship for justice marshall, her work with

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Dianne Feinstein: the congress in the 1990's, and the positions she takes now as solicitor general cannot forecast with any certainty what results she will reach in cases before the court as much as members on the other side may try to make that case.

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Dianne Feinstein: and i think justice jackson is living proof of that. however, they do provide important assurance that she will appreciate the core principles and undergird the work of each and every branch of this government. li justice jackson, this has

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Dianne Feinstein: the potential to make her a very persuasive and impressive justice. in sum, i believe that elena kagan's professional background makes her superbly qualified to sit on the supreme court, not just qualified. an excellent professional

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Dianne Feinstein: she has answered over 200 additial questions for the record and scores of letters have been sent tos regarding her qualifications. what repeatedly emerges from all of this is that elena kagan is a pragmatist, a problem solver and

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Dianne Feinstein: a conciliator, and i think her time as dean of harvard law school, misinterpreted often, but paints a vivid picture. elena kagan arrived at harvard in 1999, and she was selected dean only four years later.

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Dianne Feinstein: in 2003, she began her service as dean. she was the first woman ever named so, a significant accomplishment in itself. what's most important, however, is that during her time at harvard, she developed a reputation as a steady leader who would bring all sides to the

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Dianne Feinstein: table and work to solve a problem. as described in a letter from 69 deans, former deans supporting her nomination, she had a unique, and i quote, willingness to listen to diverse viewpoints and give them all serious consideration.

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Dianne Feinstein: she revealed a strong and consistent aptitude for forging coalitions that achieved smart and sensible solutions, often in the face of seemingly insoluble colict. end quote. quite a statement from 69 deans of harvard

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Dianne Feinstein: she brought conservative faculty such as bush administration lawyer jack goldsmith to the school and rallied the faculty to come together to support them. former solicitor general charles freeh described her effect this way, and i quote -- "the place is like it's never been before.

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Dianne Feinstein: she managed to calm the factionalism so it's completely disappeared." that's according to former solicitor general charles freeh. "the boston globe" stated it more simply, simply saying, "she thawed harvard law." this sam knack for the

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Dianne Feinstein: pragmatic and drive toward consensus echo throughout her career. a liberal scholar from the university of chica has characterized her academic work this way, and i quote -- "she is much more of a lawyer than a partisan. she is more interested as a

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Dianne Feinstein: scholar in thinking through hard issues than advocating particular ideologic or political perspectives." end quote. and former clinton chief of staff john podesta has wtten that during the clinton administration, kagan -- quote -- "distinguished herself

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Dianne Feinstein: as deeply lawyer to the constitution and the law." end quote. and said that -- quote -- "on issues ranging from adoption to religious freedom to tobacco regulation, she esch. wed ideology in favor of

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Dianne Feinstein: practical solutions." end quote. her friends, admirers, colleagues repeatedly describe her in those terms. a problem solver, a conciliator, someone who bngs people together, even when they have very different views. what really impresses me, though, is what we have heard from conservatives.

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Dianne Feinstein: let me know here that the very fact that we have heard from these conservatives is impressive. in today's political atmosphere, lawyers take a risk when they cross party lines to support supreme court nominees. key people have done so for kagan.

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Dianne Feinstein: former bush appointee to the tenth circuit and current stanford law professor michael eight-page letter outlining the reasons for his strong support for kagan's nomination. elena kagan, he says, shows, and

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Dianne Feinstein: i quote -- "respect for opposing argument, fair-mindedness, willingness to reach across ideologic divides, independence and courage to buck the norm." end quote. no one, he said, can foresee the future, but i would not be surprised to find that elena

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Dianne Feinstein: kagan as a justice serves more as a bridge between the factions of the court than as a reliably progressive vote. end quote. senator graham, my colleague on the committee, has pointed to the words of miguel estrada, a deeply conservative lawyer who

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Dianne Feinstein: has known kagan for 27 years. he describes her as having, and i quote -- "a formidable intellect, an exemplary temperament and a rare ability to disagree with others without being disagreeable. she's calm under fire and mature and deliberate in her judgments." end quote.

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Dianne Feinstein: today, mr. president, we have a divided court, a court in which the justices are repeatedly split 5-4 on major rulings of the day. these rulings determine what kind of gun laws legislatures can pass to protect the public's

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Dianne Feinstein: safety in our cities, howuch money will be spent in federal elections, what school districts can and cannot do to maintain racial diversity in our schools, what remedy our older and women workers have when their employers discriminate against them, wha the appropriate role

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Dianne Feinstein: for religion is in our public life or how much a company can be required to pay for causing significant harm to our environment, and these justices are split down the middle on these major questions. they cannot find compromise or agreement.

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Dianne Feinstein: so major questions of the day are adjudicated on a bare majority. we badly need a justice who can drive this court toward consensus, and i have high hopes that elena kagan will be just such a justice. her record also gives me

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Dianne Feinstein: confidence that she will follow the law and put aside any personal policy preference when deciding cases on the court. in the course of her career, whether working on policy or on law, law has always come first. and as solicitor general, she has proven quite clearly that

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Dianne Feinstein: she can put her personal views aside, filing, for example, a brief that defended the constitutionality of don't ask, don't tell. although she is known to strongly disagree with that policy, she defended it and stated that the court should let stand a first circuit decision

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Dianne Feinstein: that upheld the policy because it reasoned military judgment of executive and legislative branches. and finally, i believe she set forth an appropriate judicial philosophy. in three days of hearings before

2:09:03 to 2:09:23( Edit History Discussion )

Dianne Feinstein: our committee, she has revealed herself as a person who believes that judges should follow precedent, stare decisis and exercise restraint in their rulings. she said, and i quote -- "no judge should look at a case and say oh, i would have decided it differently.

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Dianne Feinstein: i'm going to decide it differently. a judge should view prior decisions with a great deal of humility and deference." end quote. and she told us, and i quote -- "the time i spent in the other branches of government remind me that the role of the court must

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Dianne Feinstein: also be a modest one, properly deferential to the decisions of the american people and their elected representatives. hers will be a welcome voice on the court." i want to take one last moment, if i may, to address questions about her actions related to

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Dianne Feinstein: military recruiting at harvard law school because i believe, to some extent, they have been inaccurately depicted. while eh member will have to draw his or her ownonclusions about whether dean kagan took the wisest course, i believe it's essential that we get the cts straight.

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Dianne Feinstein: as dean, elena kagan never barred military recruiters from the harvard law school campus. for one semester after the u.s. court of appeals for the third circuit held that the solomon amendment was unconstitutional, kagan reverted to an earlier school policy that had been used

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Dianne Feinstein: for many years before she became dean. that is fact. under that policy, the military recruited through the harvard law school veterans association but was excluded from the office of career services. at all times, the military had access to students. in fact, military recruitment

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Dianne Feinstein: levels at harvard remained steady and even increased at times during kagan's tenure as dean, but what is most striking to me in reviewing all of this is that although the judiciary has heard from service members on both sides of this issue, every report we have received

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Dianne Feinstein: from a veteran or service member who actually attended harvard at the time has been in strong support of kagan's nomination to the court. marine corps captain bob merrill graduated from harvard law school in 2008, is currently serving in afghanistan. he writes, and i quote --

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Dianne Feinstein: "kagan's positions never affected the service's ability to recruit at harvard. behind the scenes, the dean assured that our tiny harvard law school veterans' association never lacked for funds or access to facilities." end quote. quote -- "she treated the

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Dianne Feinstein: veterans at harvard like v.i.p.'s. she is even a of our veterans' association." end quiet. first lieutenant david tressler graduated from harvard law school in 2007 and is currently serving in afghanistan with the united states army reserves. he wrote, and i quote -- "while dean of harvard law school,

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Dianne Feinstein: kagan adequately proved her support for those who had served, were currently serving and all of those who felt called to serve." end quote. navy judge advocate general corps lieutenant zachary prager graduated in 2006 and wrote that dean cage -- this is a quote --

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Dianne Feinstein: "set a standard at harvard of respect for military service members, and without that, kagan's leadership and evenhanded as dean, he would not have joined the military." like admiral mike mullen, secretary of defense robert gates, secretary of the navy ray mabi retired general colin powell, myself and many others

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Dianne Feinstein: in this chamber, kagan has said that she personally disagrees with the don't ask, don't tell policy, and she is not alone. at certain dark moments in our history, institutions of higher education have shown a hostility in this sense, but those contexts should not be confused.

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Dianne Feinstein: to oppose the exclusionary policy of don't ask, don't tell is not to oppose or show hostility toward the military. it is instead to say that the time has come for all willing and able americans to be able to serve. like elena kagan, i strongly believe that the criteria for

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Dianne Feinstein: military service in our country should be competence, courage and a willingness to serve, not race, gender or sexual orientation. members should draw their own conclusions about whether kagan made the right choice as dean in returning to harvard's old

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Dianne Feinstein: recruiting policy in 2005, but i want to be clear that nhing in her record shows any hostility toward the military or the men and women who serve our country. in fact, service men and women who were there at the time have come forward and the evidence is

2:14:58 to 2:15:18( Edit History Discussion )

Dianne Feinstein: to the contrary. conclusion i believe elana kagan will be a fine justice on the united states supreme court. and i look forwardo the day soon when she takes her seat as the fourth woman in history to serve on that court.

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Dianne Feinstein: i am very proud to support her nomination.