Senate Proceeding on Aug 3rd, 2010 :: 2:15:25 to 2:43:40
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2:15:21 to 2:15:42( Edit History Discussion )

Jon Kyl: i thank the chair. i mr. president, i have eight unanimous consent requests for committees to meet during today's session of the senate. they have the approval of the majority and the minority leaders. i ask unanimous consent that these requests be agreed to and that these requests be printed

2:15:25 to 2:43:40( Edit History Discussion )
Speech By: Jon Kyl

2:16:48 to 2:17:08( Edit History Discussion )

Jon Kyl: someplace between voting no and having some sort of substantive answer, but i think we are searching for a way in ways that you can get substantive answers short of voting i confess, like senator specter, i don't know how we can expect

2:17:09 to 2:17:30( Edit History Discussion )

Jon Kyl: nominees to be forthcoming except through supporting votes. my threshold does not require answering on issues sure to come before court nor necessarily expressing agreement or disagreement with decisions with court opinions. it is possible to learn much about a nominee's approach to judging without committing to one a specific position in the future cases.

2:17:31 to 2:17:53( Edit History Discussion )

Jon Kyl: what we should expect, however, is candor and a willingness to honestly discuss background and general constitutional principles, approachs to judging, and writings and matters within the nominee's background that bear on the nominee's suitability for the bench. in explainingy could not vote

2:17:59 to 2:18:19( Edit History Discussion )

Jon Kyl: justice -- notwithstanding other qualifications for the position. reluctantly after analysis of her testimony, weighed with her past writings, statements, and actions, i have reached the same conclusion regarding elana kagan. exhibit a is her insistence on redefining her position on

2:18:20 to 2:18:41( Edit History Discussion )

Jon Kyl: military recruiting on harvard campus. the are separate but equal defense and the attempt to undermine the legal policy of don't ask, don't tell were ultimately unbelievable it is almost unfathomable, for example, that someone with her

2:18:42 to 2:19:02( Edit History Discussion )

Jon Kyl: legal acumen always thought we were acting in compliance with the solomon amendment. ms. kagan tried to convince the judiciary committee that her actions against the military were a just final response to a policy that she viewed as discriminating against homosexuals. but as senator sessions noted her stand against homosexual discrimination was not universal.

2:19:03 to 2:19:23( Edit History Discussion )

Jon Kyl: she did not speak out when harvard accepted $20 million from a member of the saudi royal family to establish a center for the study of sharia law, even though under the law, sexual activity between two people of the same gender is punishable by

2:19:24 to 2:19:44( Edit History Discussion )

Jon Kyl: death or flogging. the policy adopted -- given her failure to express concern over or take action against the establishment of the center to promota legal system linked to the abuse of homosexuals, wen, and others. exhibit b is the astonishing redefinition of what she meant in her praise for justice

2:19:45 to 2:20:05( Edit History Discussion )

Jon Kyl: marshall's vision of the role of the court. presumably to avoid the obvious conclusion that she agreed with the activist approach to judging. justice marshall had an enormous influence on her jurisprudence starting with and his advocacy before and most especially with brown v. board of education.

2:20:06 to 2:20:26( Edit History Discussion )

Jon Kyl: but no serious student would argue that he didn't try to push the law as far as he could in furtherance of his philosophy. consider the comments of another liberal law professor who now serves in the obama administration. he said this, a serious commitment to marshall's commitment of constitutional

2:20:27 to 2:20:47( Edit History Discussion )

Jon Kyl: liberty to have an extraordinary judicial law one which courts are quite well suited and he acknowledged even if the best substantive theory calls for something like marshall's vision, institutional division wos argue against it. ms. kagan's attempt to define

2:20:48 to 2:21:08( Edit History Discussion )

Jon Kyl: marshall's philosophy is that he wanted everyone to have equal access to the court is disingenuous. she embraces his would confirm the concern that she would be a results-oriented judge, she funnelinged. in doing so she confirmed the suspicion and compounded the

2:21:09 to 2:21:30( Edit History Discussion )

Jon Kyl: problem with deceptive testimony. exhibit insisting that they did not contain her views but channeling of his. ms. kagan offered the explanation for memo categorizing litigants as good guys and bad guys. another memo stating that the government was for once on the side of the angels.

2:21:31 to 2:21:53( Edit History Discussion )

Jon Kyl: and a memo expressing fear that the court might create bad law on abortion or prisoners' rights. reading these memos one gets the sense that ms. kagan was not simply channeling her boss, but was instead expressing her own personal policy views on matters before court and this they had as much to do with who the litigants whereas what the

2:21:54 to 2:22:15( Edit History Discussion )

Jon Kyl: issues were. ms. kagan attempted to recast her praise of israeli supreme court justice erin barak, who in the words of the associated press is widely acknowledged as someone who took an activist approach to judging. that's exhibit d. judge richard posner described

2:22:16 to 2:22:36( Edit History Discussion )

Jon Kyl: justice barak's history as creating judicial power undreamed of even by our most aggressive supreme court justices. under his leadership the israeli supreme court grandised its own power far beyond what those on the left would view. to cite the judicial philosophy,

2:22:37 to 2:22:58( Edit History Discussion )

Jon Kyl: he wrote that a judge's role is not restricted to adjudicating disputes where parties claim that the rights have been violated, but rather to bridge the gap between society. bridging gaps and using the law to address societal problems is

2:22:59 to 2:23:20( Edit History Discussion )

Jon Kyl: not the job of the court. her praise for justice bak had nothing to do with his left-wing judicial philosophy. in 2002, ms. kagan praised erin barak for over one of the principled legal systems in the world.

2:23:21 to 2:23:43( Edit History Discussion )

Jon Kyl: in 2006 she heaped praise on justice barak calling him the judicial hero. it was summarized by an event and i quote, kagan begins by four great justices harvard law has been associated, brandies,

2:23:44 to 2:24:04( Edit History Discussion )

Jon Kyl: brennan and frankfuter, but which i am most proud, more proud than of the associations with brandis, holmes, brenner or frankfuter is the one that we have with president barak of the israeli supreme court. she continued, i told president barak, that he is my judicial hero.

2:24:05 to 2:24:25( Edit History Discussion )

Jon Kyl: he is the judge or justice in my lifetime who best represents and best advanced the values of democracy and human rights of the rule of law and justice. during her confirmation hearing ms. kagan under oath testified that she admired justice barak for his role in creating an independent judiciary for

2:24:26 to 2:24:46( Edit History Discussion )

Jon Kyl: israel, not for his particular judicial philosophy, not for any of his particular decisions. that testimony cannot be squared with her public justice barak and i quote -- "is the judge or justice in my lifetime whom i think best represents and has best advanced

2:24:47 to 2:25:07( Edit History Discussion )

Jon Kyl: the a values of -- the values of democracy, human rights and justice. exhibit e, is the answer to whether she is a legal progressive. her statements were again designed to cloud her views. vice president biden's who served as chief of staff to attorney general reno and chief

2:25:08 to 2:25:28( Edit History Discussion )

Jon Kyl: of staff to vice president gore, has known ms. kagan as far back as 1993 when they worked on the ginsburg hearings. at the hearing, senator sessions pointed out that he said and i'm quoting elana kagan is a legal progressive. i think she comes from the

2:25:29 to 2:25:50( Edit History Discussion )

Jon Kyl: progressive side of the. she worked in the clinton administration, worked in the obama administration. i don't think there's any mystery over the fact that she is, as i said, of more -- more of the progressive role than not. end of quote. senator sessions then asked ms. kagan, do you agree with the characterization that you're a legal progressive? she replied, i honestly don't

2:25:51 to 2:26:11( Edit History Discussion )

Jon Kyl: know what that label means. so senator sessions pressed ms. kagan, i'm asking about his firm statement that you are a legal progressive which means something. i think he knew what he was talking about. he's a skilled lawyer in the midst of great debates about landrieu politics just as you have. so i ask you again, do you think it's a fair characterization of your views. certainly you don't think he was

2:26:12 to 2:26:32( Edit History Discussion )

Jon Kyl: attempting to embarrass you or hurt you in the process. she dodged with an answer. i love my good friend rod clinging, but i guess people should be allowed to label themselves. i don't know what that label means. so i guess i'm not going t characterize it one way or the other. end of quote.

2:26:33 to 2:26:53( Edit History Discussion )

Jon Kyl: so a nominee to the highest court in the land and a former dean to one of the most prestigious law schools insists she doesn't know what the term legal progressive means. later in the hearing senator graham mentioned that greg craig had praised ms. kagan and mr. craig said -- quote --"elana

2:26:54 to 2:27:14( Edit History Discussion )

Jon Kyl: kagan is largely a proesve in theold of obama himself." senator graham ask would you consider your political views progressive? then ms. kagan acknowledged that, yes, her political views are generally proessive. it's hard to believe that ms. kagan knows what a political progressive is, but not a legal

2:27:15 to 2:27:35( Edit History Discussion )

Jon Kyl: progressive. exhibit f, her attempt to redefine her views in the letters sent to the judiciary committee on november 14, 2005, in which she objected to the graham-kyl-cornyn amendment, dealing with the treatment of enemy detainees. her characterization of our approach being similar to the

2:27:36 to 2:27:58( Edit History Discussion )

Jon Kyl: fundamentally lawless action of dictatorships was unjudicious. much like her characterization of the don't ask, don tell, as a moral injustice of the first order. she would have a hard time laying aside if similar questions ever came before her as a supreme court justice.

2:27:59 to 2:28:21( Edit History Discussion )

Jon Kyl: in her attempt to distancer self from -- herself from the obvious application of her views to places other than gitmo because her letter bemoaned the serious approach of prisoners in guantanamo, iraq, and afganistan and issues other than convictions of sentencing, even

2:28:22 to 2:28:43( Edit History Discussion )

Jon Kyl: though her said i prohibit challenges to adjudications of their guilt and their punishment. suggest that either she was uncomfortable defending her position or she wanted to preserve her right to sit on such cases in the future or both. the attempt to obscure positions she had previously associated was i believe an attempt to run away from those positions and

2:28:44 to 2:29:04( Edit History Discussion )

Jon Kyl: mislead the committee. exhibit g, ms. kagan's double speak on the same-sex marriage. prior to her confirmation as solicitor generalhen she was not restricted as judicial nomies in the ability to comment on issues to come before the court. senator cornyn asked, do you

2:29:05 to 2:29:27( Edit History Discussion )

Jon Kyl: believe there is a fundamental constitutional right to same-sex marriage, he asked. her answer then seemed clear, she wrote -- quote --"there is no federal constitutional right to same-sex marriage." end of quote. but at the hearing, when i asked ms. kagan to confirm her views on this subject, she distord senatorornyn's question and

2:29:28 to 2:29:48( Edit History Discussion )

Jon Kyl: her answer, she asked if she could perform her role as solicitor general and defend don't ask, don't tell. when i said that it was about a constitutional right to same-sex marriage, not don't ask, don't tell, she said that her answer to senator cornyn is there is no

2:29:49 to 2:30:10( Edit History Discussion )

Jon Kyl: constitutional right to same-sex marriage, and accepted the state of the law. end of quote. having reinterpreted her previous answer, she then told me that as supreme court nominee, it would be -- it would not be appropriate for her to share her personal views on the subject since such a case might come to the court. it strikes me that ms. kagan

2:30:11 to 2:30:32( Edit History Discussion )

Jon Kyl: was, at the time of her nomination to be solicitor general, trying t create an impression, apparently a false one, that she did not personally believe the constitution could be read to include the right to same-sex marriage. that leads to exhibit h, her involvement while serving as solicitor general in a case concerning the constitutionality of the defense of marriage act, or doma.

2:30:54 to 2:31:18( Edit History Discussion )

Jon Kyl: conflict with my own opinions. i believe she said deeply that specific roles carried with them specific responsibilities and that the ethical performance of a role demands carrying out these responsibilities as well and completely as possible. end of quote. even -- ms. kagan even cited former solicitor general ted

2:31:19 to 2:31:41( Edit History Discussion )

Jon Kyl: olson's defense. "i know that ted olson would not have voted for the mccain-feingold bill but he did an excellent job of defending that piece of legislation. that's what a solicitor general does." yet there is substantial doubt -- or reason, rather, to doubt that ms. kagan generally carried out her obligations to vigorously defend a statute in

2:31:42 to 2:32:02( Edit History Discussion )

Jon Kyl: district court, the defense of marriage act. many response to questions at her supreme court hearing, miss kagan acknowledged that she was involved in two district court cases involving doma. her personal involvement in these cases was itself unusual, as she admitted in response to written questions. she said -- quote -- "in the normal course of the solicitor general's office does not participate in district court

2:32:03 to 2:32:27( Edit History Discussion )

Jon Kyl: litigation." well, her involvement would not necessarily have raised concerns were it not for the position that the government advocated in the cases. in the first case, smelt v. united states, the department of justice filed a brief that, as part of its so-called defense of the doma statute, admitted to the court that -- and i'm quoting -- "this administration does not support doma as a

2:32:28 to 2:32:49( Edit History Discussion )

Jon Kyl: matter of policy, tbleeftsz discriminatory and -- believes that it is discriminatory and it tobe so." how can they declare it to be discriminatory? but it gets worse. they asked the court to ignore

2:32:50 to 2:33:10( Edit History Discussion )

Jon Kyl: one of the strongest doma, namely that it's a strong vehicle. the brief asserted that the government -- and iuote here -- "does not believe that doma is rationally related to any legitimate government interests in procreation and child rearing." it's clear that the department of justice' brief, which was supposed to be filed in support

2:33:11 to 2:33:31( Edit History Discussion )

Jon Kyl: of the doma statute, in fact, undercut the law's constitutionality. as one legal scholar and proponent of same-sex marriage said about the justice department's argument -- and i quote -- "this new position is a gift to theay marriage movement since it was not necessary to support the government's position. it will be cited by litigants in state and federal litigation and

2:33:53 to 2:34:14( Edit History Discussion )

Jon Kyl: for other reasons and that brings us to the secretary doma case in which miss kagan was involved, gill v. office of personnel management. in gill, the justice department again offered the same half hearted defense of doma and repudiated its strongest legal arguments. thisime, however, the district court seized on the justice department rejection of the

2:34:15 to 2:34:35( Edit History Discussion )

Jon Kyl: procreation and childbearing rationales and found that doma was unconstitutional. ed walen, the noted legal commentator and former principal deputy of the office of legal counsel, has explained that the decision in gill -- quote -- "would be ridiculous but for d.o.j.'s abandonment of congress's stated justifications

2:34:36 to 2:34:56( Edit History Discussion )

Jon Kyl: for doma. under proper application of the very differential rational basis review, for example, it would be enough to recognize that it would have been reasonable for congress in 1996 to rard traditional marriage as a valuable vehicle for encouraging procreation and childbearing." although miss kagan admitted being involved in both the smelt

2:34:57 to 2:35:18( Edit History Discussion )

Jon Kyl: and gill decisions -- or cases, rather, she refused to tell us her role in the deliberations. in response to written questions, miss kagan did admit that her participation in smelt was -- quote -- "sufficiently substantial" that she would recuse herself should the case come before the supreme court. but this promise itself was disingenuous because the smelt

2:35:19 to 2:35:39( Edit History Discussion )

Jon Kyl: case had already been dismiss, so there was no chance that it would come before the supreme court. on the other hand, the gill case may very well make its way to the supreme court, but miss kagan did not promise to recuse herself from participating in it it, despite her involvement in formulating the justice department's flawed defense of doma in that case.

2:35:40 to 2:36:02( Edit History Discussion )

Jon Kyl: we will likely never know what miss kagan's advice was in these cases. what we do know is that miss kagan has a history of ignorin the law when it conflicts with the gay we also know that she took the unusual step of getting involved in these district court cases challenging doma, and we know that the justice department went out of its way to abandon one of the fundamental rationales for

2:36:03 to 2:36:23( Edit History Discussion )

Jon Kyl: the doma statute which resulted in a court for the first time ever ruling that doma was unconstitutional. on the basis of these facts, i believe that any reasonable observer would question whether miss kagan kept her promise to us that she would vigorously defend federal statute as solicitor general. exhibit i is her dubious

2:36:24 to 2:36:44( Edit History Discussion )

Jon Kyl: explanation of why in another case that she solicitor general, she declined to appeal the 9th circuit's adverse rulings in witt v. the department of the air force, a case challenging the constitutionality of the government's don't ask/don't tell statute. at her hearing, miss kagan claimed that allowing the 9th circuit decision to stand and accepting a remand and trial in district court, would provide

2:36:45 to 2:37:05( Edit History Discussion )

Jon Kyl: the supreme court with a fuller record and would help the government show what the ninth circuit was demanding that the government do to defend don't ask/don't tell. but a review of the ninth circuit opinion and the record in this case shows that miss kagan's explanation was disingenuous. the nin circuit itself had already said what the government would need to prove for the federal law to survive.

2:37:06 to 2:37:26( Edit History Discussion )

Jon Kyl: there was no need to develop a fuller record or seek further clarification from the courts. miss kagan's decision to let the case return to the district court ensured that members of the military would be subjected to invasive and hugh mill taight trials in the witt case and in all other challenges against don't ask/don't tell, trials in which soldier compelled to testify against

2:37:27 to 2:37:47( Edit History Discussion )

Jon Kyl: their comrades, discuss their views of a fellow soldier's sexual practices, and watch as the unit's personnel files became fodder for laws trying to condemn what is supposed to be a militarywide policy. the government rightly argued before the trial court that such trials are guaranteed to destroy unit cohesion, the very thing that congress sought to protect

2:37:48 to 2:38:08( Edit History Discussion )

Jon Kyl: when it passed the don't ask/don't tell statute. and the trial court records show that kagan knew in advance that the trial process would harm the military's interests but she decided to thrust the government into exactly the position the military's lawyers most wanted to avoid. perhaps to keep in place and insulate from supreme court review a ninth circuit ruling

2:38:32 to 2:38:52( Edit History Discussion )

Jon Kyl: commerce v. it takes a clever lawyer to argue that the court should take this immigration case but not take lopez rodriguez v. holder based on the traditional reasons for granting certiorari. in candalaria, she asked the prospect so strike down an arizona law that permits the state to suspend or revoke the business licenses of companies

2:38:53 to 2:39:13( Edit History Discussion )

Jon Kyl: that knowingly employ illeg i wilaliens. she did this even though the law expressly authorizes states to enforce immigration laws through licensing and even though t courts that have considered the issue have determined that states could do precisely what arizona did. yet in lopez rod regez, another immigration -- lopez, rodriguez, another

2:39:14 to 2:39:34( Edit History Discussion )

Jon Kyl: immigration case, she refused to deny the ninth circuit to permit hearings over the admissibility of clear evidence that a person is illegally here. unlike candalaria, the ninth circuit decision in lopez rodriguez was a conflict with the decisions of other courts, including the supreme court, and did involve a significant constitutional issue.

2:39:35 to 2:39:57( Edit History Discussion )

Jon Kyl: it's difficult not to conclude that miss kagan's action in these two cases were driven less by the law and more by political expediency. my second concern about ideology is that miss kagan has shown that she may hold a limited reading of the second amendment, even after the heller and mcdonald cases. when asked whether the right to bear arms was a fundamental

2:39:58 to 2:40:20( Edit History Discussion )

Jon Kyl: right, miss kagan said that i think that's what the court held in mcdonald. she also said that the holding was a good precedent going forward. of course, there's strong record of nominees describing the holding of a case and proclaiming that it's good precedent only to vote or overturn or distinguish that precedent once they ascend to the bench. justice sotomayor did just that on this issue.

2:40:21 to 2:40:41( Edit History Discussion )

Jon Kyl: but we need not rely on cynicism to demonstrate that miss kagan may not view the secon amendment precedence of settling the question of whether gun ownership is a fundamental right. generally speaking, when a constitutional right is fundamental, any government restriction on that right is subject to strict scrutiny by the courts. but at her hearing, miss kagan left open the possibility that

2:40:42 to 2:41:02( Edit History Discussion )

Jon Kyl: some other lesser standard of scrutiny should app to second amendment restrictions. she said that -- quote -- "going forward, the supreme court will need to decide what level of constitutional scrutiny will apply to gun regulations." this does not sound like a commitment to the principle that the second amendment guarantees a fundamental right. when weighed with her

2:41:03 to 2:41:23( Edit History Discussion )

Jon Kyl: well-documented work in the clinton administration to advance gun control legislation, i believe there is justifiable concern that miss kagan would vote to construe heller and mcdonald as narrowly as possible. third, i'm concerned that miss kagan sees few, if any, limitations on congress' authority to regulate behavior or interstat commerce.

2:41:24 to 2:41:45( Edit History Discussion )

Jon Kyl: in a remarkable exchange, senator coburn asked miss kagan whether it would be constitutional for congress to pass a law requiring americans to eat three vegetables and three fruits every day. although miss kagan said such a law sounded dumb, she refused to say that such a law would be unconstitutional. in fact, during the course of the exchange, miss kagan repeatedly emphasized that a

2:41:46 to 2:42:06( Edit History Discussion )

Jon Kyl: court analyzing such a statute should read the commerce clause broadly and give real deference to congress. i agree that the commerce clause gives the congress substantial authority but it does not give congress unlimited authority. that miss kagan was unwilling to say a law requiring the consumption of produce is beyond congress' authority suggests she

2:42:07 to 2:42:29( Edit History Discussion )

Jon Kyl: would vote to uphold statutes that exceed the boundaries of the commerce clause. stretching the commerce clause, thus, gives too much power to congress. finally, mr. president, it's worth noting that miss kagan came to the senate with a lack of legal and judicial experience, especially when compared to other recent nominees. some have reached back 40 years to compare her experience to

2:42:30 to 2:42:52( Edit History Discussion )

Jon Kyl: that of chief justice rehnquist, the last nominee without prior judicial experience. confirmed to the supreme court in 1972. william rehnquist, however, spent 16 years as a practicing litigator in my home state of arizona and two more years as assistant attorney general in the office of legal counsel, a position that was later held by justice scalia. and that, according to the

2:42:53 to 2:43:14( Edit History Discussion )

Jon Kyl: department of justice, typically deals with legal issues of peculiar complexity and provides authoritative legal advice to the president and all the executive branch agencies. in contrast, miss kagan's law practice confined to two years in private practice shortly after law school and one year as solicitor general. her limited experience is not by

2:43:36 to 2:43:41( Edit History Discussion )

Jon Kyl: views. she also failed to make the case that her political ideology would not influence her judging.