Ted Kaufman - United States Senator for Delaware

On the Senate Floor, Kaufman Strongly Endorses Kagan for Supreme Court

July 13, 2010

Mr. President, I rise in support of the nomination of Solicitor General Elena Kagan to be an Associate Justice on the U.S. Supreme Court.

Last month, the Judiciary Committee held 4 days of hearings on General Kagan's nomination, including 2 very full days of testimony from the nominee herself.

I came away from the hearings deeply impressed with General Kagan's intellect, thoughtfulness, demeanor, and integrity. These characteristics, already plainly evident in her lifetime of accomplishment, were on full display during her testimony.

Last year, when Justice Souter announced his retirement, and again when Justice Stevens announced his retirement this April, I suggested that the Court would benefit from a broader range of experience among its members.

My concern was not just the relative lack of women or racial or ethnic minorities on our Federal courts, though that deficit remains glaring.

I was noting the fact that the current Justices all share very similar professional backgrounds. Every one of them served as a Federal circuit court judge before being appointed to the Supreme Court.

Not one of them has ever run for political office, like Sandra Day O'Connor or Earl Warren or Hugo Black.

I am heartened by what this nominee would bring to the Court based on her experience working in and with all three branches of government, the skills she developed running a complex institution like Harvard Law School, and yes, the prospect of her being the fourth woman to serve on our Nation's highest court.

Some pundits, and some Senators, have suggested her lack of judicial experience is somehow a liability. I could not disagree more.

   While prior judicial experience can be valuable, the Court should have a broader range of perspectives than can be gleaned from the appellate bench.

In the history of the U.S. Supreme Court, more than one-third of the Justices have had no prior judicial experience before being nominated. And a nominee's lack of judicial experience has certainly been no barrier to success.

When Woodrow Wilson nominated Louis Brandeis in 1916, many objected on the ground that he had never served on the bench.

Over his 23-year career, however, Justice Brandeis proved to be one of the Court's greatest members. His opinions exemplify judicial restraint and his approach still resonates in our judicial thinking more than 70 years after his retirement.

Felix Frankfurter, William Douglas, Robert Jackson, Byron White, Lewis Powell, Harlan Fiske Stone, Earl Warren and William Rehnquist all became Justices without having previously been judges. They certainly all had distinguished careers on the Supreme Court.

As Justice Frankfurter wrote about judicial experience in 1957:

One is entitled to say without qualification that the correlation between prior judicial experience and fitness for the functions of the Supreme Court is zero.

We have all now had the opportunity to review General Kagan's extensive record as a lawyer, a policy adviser, and administrator, and to listen to her thoughtful and candid answers to a wide range of probing questions.

Throughout her career, she has consistently demonstrated the all-too-rare combination of a first-rate intellect and an intensely pragmatic approach to identifying and solving problems.

Last summer, during then-Judge Sotomayor's confirmation hearing, and again during General Kagan's hearing, I focused on the current Court's handling of business cases.

I am convinced, by education, experience, and inclination, that the integrity of our capital markets, along with our democratic traditions, is what makes America great.

Today, however, while we have a real need for significant financial regulatory reform, we also face a Supreme Court too prone to disregard congressional policy choices.

My concern is that a Court resistant to Federal Government involvement in and regulation of markets could undermine those efforts. I am not suggesting that we face a return to ``a New-Deal-era Court--a Court determined to strike down regulatory reform as beyond the authority of Congress.

But a Court predisposed against government regulation might chip away at the edges of reform, materially reducing its effectiveness.

That is why my questioning of Solicitor General Kagan focused on business cases and on her philosophy concerning deference to congressional judgment.

During the hearing, she emphasized the importance of ``judicial deference to the legislative process.'' She also acknowledged Congress's ``broad authority'' under the commerce clause to regulate the financial markets.

Finally, she stated emphatically her views on results-oriented judging. I really liked what she said on this point, so I'm going to quote it in full:

I think results-oriented judging is pretty much the worst kind of judging there is. I mean the worst thing that you can say about a judge is that he or she is results-oriented. It suggests that a judge is kind of picking sides irrespective of what the law requires, and that's the absolute antithesis of what a judge should be doing, that the judge should be trying to figure out as best she can what the law does require, and not going in and saying, ``You know, I don't really care about the law, you know, this side should win.'' So to be a results-oriented judge is the worst kind of judge you can be.

Based on General Kagan's ability to communicate her thoughts and ideas during the committee hearings last month, I am confident that other Justices and, by extension, the entire Court, will benefit by the addition of her voice to their deliberations.

One of the aspirations of the American judicial system is that it render justice equally to ordinary citizens and to the most powerful.

We need Justices on the Supreme Court who not only understand that aspiration but also are committed to making it a reality. I believe Elena Kagan, through her truly impressive record of accomplishment, and through the entire confirmation process, has demonstrated that commitment.

In short, this nominee has all the qualities necessary to serve well all Americans, and the rule of law, on our Nation's highest court.

I urge my colleagues to confirm her without delay.

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