Senate Debate on Empathy
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Mr. GRASSLEY. Mr. President, I wish to address my colleagues about the upcoming judiciary hearing and the nomination of Solicitor Kagan to the Supreme Court. I have always been of the opinion that the Senate needs to conduct a comprehensive and careful review of Supreme Court nominees. It is important that the nominee be given a fair, respectful, and also deliberative process. This is a lifetime appointment to the highest Court in the land, so it is our duty to ensure that the Supreme Court of the United States candidate understands the proper role of the Supreme Court in our system of government, and would be true to the Constitution and the laws as written. We need to be certain that the nominee will not come with an agenda to impose his or her personal political feelings and preferences on the bench.
The Senate needs enough time to adequately review the nominee's record to make these determinations. But because Solicitor Kagan does not have the usual background of being a judge on the Federal or State bench, we have no concrete examples of her judicial philosophy in action. It is critical that we understand whether she has a proper judicial philosophy because Solicitor Kagan is being considered for the Supreme Court. So it is even more important for us to look at her entire record and to give particular weight to her statements and writings as well as the positions she has taken over the years.
In order for the Senate to fulfill its constitutional responsibility of advise and consent, we must get all of her documents from the Clinton Library and have enough time to analyze them so we can determine whether she should be a Justice. I share the concerns of the Judiciary Committee ranking member, Senator Sessions, that Solicitor Kagan's documents will not be fully produced in time for the committee to conduct a thorough review of the nominee's record.
I hope we will receive these materials in time before the Judiciary Committee holds the Kagan hearings. From the materials and documents that we received so far, and which the committee is still reviewing, Solicitor Kagan's record clearly shows she is a political lawyer. In fact, a recent Washington Post article said her papers in the Clinton Library ``show a flair for the political,'' and that she had ``finely tuned ..... political antennae.'' Solicitor Kagan was involved in a number of hot-button issues during President Clinton's second term, including gun rights, welfare reform, partial-birth abortion, and Whitewater. The documents we received from the Clinton Library show that Ms. Kagan [Page: S4929] promoted liberal positions and offered analyses and recommendations that often were more political than legal in nature.
Solicitor Kagan's memos from the Marshall papers also indicate a liberal and seemingly outcome-based approach to her legal analysis. So I look forward to asking Solicitor Kagan about her record and her judicial philosophy. But a judge needs to be an independent arbiter, not an advocate or a rubberstamp for a political agenda. We already know that Solicitor Kagan has held far left political views from a young age. She has been a long-time political lawyer, and she is a personal friend of the President.
As Solicitor General, she has been a prominent member of the Obama administration's team. As a nominee to the Supreme Court, Solicitor Kagan has the burden of showing that despite her record as a political lawyer, rather than as a sitting judge or practitioner, if she is confirmed she will apply the law impartially and not as a member of someone's team who is working to achieve their preferred political result.
Moreover, President Obama's standard for picking judicial nominees is one that places a premium on a judge's empathy for certain individuals or groups rather than on an even-handed reading of the law. As a Senator, President Obama lauded judicial nominees who would decide cases based on ``one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.'' As a Presidential candidate, President Obama said he would appoint judges who have empathy for certain groups. As President he said his judges would have ``a keen understanding of how the law affects the daily lives of the American people.'' The Obama ``empathy'' standard concerns me greatly because the inference is that an empathetic judge will pick winners and losers based on his or her personal preferences rather than the law blindly picking winners and losers.
When President Obama nominated Solicitor Kagan to the Supreme Court, Vice President Biden's chief of staff, who was involved in vetting the Supreme Court of the United States candidates, assured liberals they had nothing to worry about from her selection. In fact, he said Solicitor Kagan was ``clearly a legal progressive.'' Thus, it is safe to assume that the President was true to his promise and picked someone who embodied his empathy standard.
Because Solicitor Kagan does not have one of the best indicators of a Supreme Court nominee's judicial philosophy; that is, a judicial record on a State or Federal bench, then I believe she should be very forthcoming with the Judiciary Committee's inquiries into her judicial philosophy.
In fact, Ms. Kagan herself advocated that a nominee should respond to specific inquires into the nominee's judicial philosophy and positions on constitutional issues.
Solicitor Kagan wrote in her University of Chicago Law Review article, ``Confirmation Messes, Old and New:'' The kind of inquiry that would contribute most to understanding and evaluating a nomination is ..... discussion first, of the nominee's broad judicial philosophy and, second, of her views on particular constitutional issues. By ``judicial philosophy'' ..... I mean such things as the judge's understanding of the role of courts in our society, of the nature of and values embodied in our Constitution, and of the proper tools and techniques of interpretation, both constitutional and statutory.
She also wrote that a nominee could comment on ``hypothetical cases'' and on general issues such as ``affirmative action or abortion,'' or ``privacy rights, free speech, race and gender discrimination, and so forth.'' Given the fact that Solicitor Kagan has been nominated to a lifetime position on the Nation's highest Court, the Senate must determine that if confirmed, she will interpret the Constitution with judicial restraint and without imposing her personal political policy preferences and biases.
The Senate must determine by examining the totality of her record that if confirmed, she would not be a rubberstamp for the President's political agenda. We will have to see whether Ms. Kagan will live up to her own standard for Supreme Court nominees and whether she will be as forthcoming as she argued Supreme Court of the United States nominees should be in the Senate confirmation process.
So I am going to be pursuing this for my people of Iowa because they are very concerned. I am getting a lot of phone calls both for and against her that have to be taken into consideration.
I yield the floor.