In support of Elena Kagan

In recent years, we have seen how just one vote on the Supreme Court can affect countless Americans and impact such important daily pocketbook issues like equal pay for equal work and discriminatory practices in the work place. Just one vote on the Supreme Court recently determined corporate money can drown out the voices of Americans in elections that decide the direction of our democracy. Democrats in the Senate are working to right that wrong. I hope Senate Republicans will reconsider their opposition to allowing the Senate to even debate the Disclose Act, which responds to the conservative activist majority of the Supreme Court deciding to override its own precedent and 100 years of legal development in Citizens United.

For nearly three months, senators have carefully reviewed Solicitor General Elena Kagan’s record and her qualifications to serve on the nation’s highest court. During hours of testimony and through her responses to hundreds of questions, the American people witnessed her intelligence, good humor and commitment to the Constitution and the rule of law.

{mosads}During the Senate Judiciary Committee’s hearing, Solicitor General Kagan answered questions more thoroughly than other recent nominees. She engaged with senators about the role of the courts and the meaning of our Constitution. Senators agreed with some of her answers and were not satisfied with others. That is no surprise. Whether a nominee agrees with each of us on particular issues or particular cases is not the test for considering nominations to the court.  

Based on my review of Solicitor General Kagan’s record and her answers to the committee, I have determined I will support her confirmation as I have six nominees of Republican presidents. When the Supreme Court next convenes, for the first time in our history, three women should be serving together among the nine Justices.

The 100 of us who serve in the United States Senate represent more than 300 million Americans as we discharge our constitutional duty with respect to this nomination. In reviewing Elena Kagan’s record and in listening carefully to her answers to the more than 500 questions posed at our hearing, I looked to see whether Solicitor General Kagan would fairly apply the law and use common sense. I looked to see whether as a justice she would appreciate the proper role of the courts in our democracy and whether she would make decisions in light of the fundamental purposes of the law. I tried to determine whether she understands why the law matters, whether she would have the good sense to appreciate the significance of the facts in the cases in front of her and whether she would consider the consequences of the court’s decisions in the lives of Americans. Would she be the kind of independent justice who would keep faith with each of the words inscribed in Vermont marble over the front doors to the Supreme Court — “Equal Justice Under Law”?  Those are the standards I have applied to every Supreme Court nomination. 

Solicitor General Kagan demonstrated an impressive knowledge of the law and fidelity to it. She spoke of the importance of judicial restraint, her respect for our democratic institutions and her commitment to the Constitution and the rule of law. She made clear that she will base her approach to deciding cases on the law and the Constitution, not politics or an ideological agenda.  

Solicitor General Kagan also demonstrated a traditional view about deference to Congress and judicial precedent, a view that conservatives once embraced, and some still do. She indicated she will not be the kind of justice who would substitute her personal preferences and overrule congressional efforts to protect hardworking Americans pursuant to our constitutional role.  Solicitor General Kagan made us one pledge, that she will do her “best to consider every case impartially, modestly, with commitment to principle and in accordance with law.”

The Supreme Court is charged with upholding the constitutional protections and liberties of every individual American. “We the People” deserve no less.  

Sen. Leahy is the chairman of the Senate Judiciary Committee.